JUSTICE AND RIGHTS

CONTENTS

1.0 Introduction

2.0 Objectives

• Main
• Plato’s search for justice as the Soul of the State
• Aristotle’s views of Justice
• Aquina’s Views of Justice
• Hume’s Views of Justice
• What does a common man say then about legal justice?

4.0    Conclusion

5.0    Summary

6.0    Tutor Marked Assignment

7.0    References/ Further Reading.

INTRODUCTION:

Everyone talks about justice, hence statements of this type – it is just, ‘it is right, and so on are appealed to a certain standard, whether or not, it is agreeable that such a standard has to be conceived in natural or conventional terms. The point is that justice forms part of a family of moral concepts, connected with law and politics. And people usually talk of distribution as being ‘right’ when they can at the same time say that it is just. But what is this thing called Justice? Philosophers and jurists have explained it differently.

OBJECTIVES

In this unit, you will be able to understand the following:

1. Philosophers and Jurists respective views of justice and rights
2. Whether justice is equally fairness or not

• Whether a theory of justice ever be politically neutral

1. The common man’s views of justice,etc

MAIN CONTENT

• Plato viewed justice as the Soul of the state. The great ancient philosopher-Plato, did not think that the identification of justice was easy. Whatever it was, he did not accept the idea that it could be identified, in his geogias, with ‘Superman morality’ proposed by Callicles, for to do justice is worse than to suffer it. Callicles does not accept Socrates’ view either, for he believes that it is moralizing to say that to do injustice is worse than to suffer it since this position bespeaks an appeal to a kind of herd morality that which one can grab for oneself according to Callicles, is just, hence “might is tight”, moreover it gives he who has might pleasure to attain his end. In this regard, what is pleasurable is good, and what is good is what one obtains by might, and that is right, that which is right is just, according to Callicles. But Socrates ridicules this view, and Callicles was led to admit that pleasure was subordinate to the good

In the Republic, Plato sets out to determine the nature of justice. In book one, Socrates his interlocutors could not determine what it is or what kind of virtue it is, hence Socrates confessed his lack of knowledge of it. Agreed on the discussion however, that there is a justice for one person, Socrates suggests, in Book Two of the Republic that if they consider the state, then justice will be more discernible. It implies obviously that the state and the individual have the same principles of justice, neither can be emancipated from the code of eternal justice.

For Plato, there is need for a particular organization of the state for one to see clearly what justice is. He liked a small territory for the city, but its enlargement will ask for more hands in various spheres. Plato was of the view that as the city enlarges, needs for musicians, poets, tutors, nurses, doctors, and so on will arise, and land will no longer be sufficient. War will arise for people will interfere with one another’s property and neigbours might intrude. Thus, there will emerge the guardian of the state, who, at first, represents the vigorous and powerful men who will repel invaders and preserve internal order. They must be spirited, gifted and courageous Plato has found craftsmen and guardians, but who are to be the rulers. They are the best of all, powerful and  intelligent, carefully selected from the guardians. Plato is to correlate functions in the state with a certain Psychology.

Book four of the Republic, especially, gives the doctrine of the tripartite nature of the soul. There are three parts to the soul, the rational, the courageous/spirited, and the appetitive parts. The rational part is the highest element. The other parts are perishable. The spirited part is nobler and in humans it is akin to moral courage. The appetitive part refers to bodily desires. Plato in Phaedmis made a comparison in which the rational element is likened to a charioteer and the spirited and appetitive elements to two horses. Here one sees Plato’s ethical interest in insisting on the right of the rational elements to rule, to act as the Chariotee. It keeps order in the various surgings of the passions of humans.

Functions in the State:

To Plato, functions in the state were likened to the division of the nature of the soul. There is justice when all the parts of the soul are harmonized. The wisdom of the state in the auxiliaries, and the temperance of the state consist in subordination of the ruled to the ruler. Thus, justice in the state is that one does that one is suited for without interfering in the Business of the other class. This will avoid confusion in the state, for Plato was disillusioned when some kind of new breed of politicians or soldiers took over power which ended in the execution of a just man-Socrates, an experience that made Plato to turn his back against active political life. Therefore, Plato’s treatment of justice was some kind of distributive concept of justice.

Aristotle Views on Justice

Aristotle saw justice as essential in the Arts of Human Affairs. It was his belief that every activity tends towards something, that is, an end or goal, which coincides with the good sought in the activity or inquiry. There are numerous activities, hence implying many ends, which are later subordinated to others as means to other ends. However, the chains of activities and their ends cannot continue ad infinitum. That is, we cannot desire indefinitely, there must be an end which terminates the series of means and subordinate ends of action- i.e. some object of desire, some object to be attained by action, which is ultimate to us, or which is intrinsically desirable. There must be, according to Aristotle, a good sought for itself, which human beings characteristically aim, and this he called eudaimonia.

Eudemonia, meaning “human flourishing” or well-being, good for man, complete and “always in itself and never for the sake of something else”. The art that seeks eudaimonia is not an exact science, it needs experience and discipline of the passions to be desired aright. The subjects and properties of the mathematical sciences are easy to define, but not sphere of politics. The sphere of politics is human affairs – human action as judges’ noble or baise, fair or unfair, just and defined within human affairs. The particular virtue that is needed to make sure that action and relationships are fairly pursued in the same virtue that founds human affairs.

The virtues are the means of human rationality in the pursuit of the good for man, and the lack of which will frustrate one’s movement towards the telos. They come as a result of habit, and are merely means to well-being.

In talking about justice, Aristotle began by stating what was commonly held by people to be Justice and injustice as that “kind of state of character which makes people disposed to do what is just and makes them act justly and wish for what is just, and similarly by injustice that state which makes them act unjustly and wish for what is unjust. Justice is the rightness of act in relation to an extrinsic end, and it has a certain character of good and praiseworthy, especially when considered in relation to others. Thus, justice is a means between acting unjustly and being unjustly treated.

Aristotle used the word ‘just’ in two senses, namely: what is lawful and what is fair and equal in social transactions. The former is universal justice which is equivalent to obedience to law, and he believed that the law-abiding man is just and the lawless person unjust and unfair.

Justice then is a social virtue that secures a good that concerns both the agent and his neighbours. It is a virtue that takes its bearing from the good of the neigbours.

Justice is divided into distributive and remedial justice.

The just in distributive justice, according to Aristotle, is a species of proportionality, for the proportion is equally of ratios, the unjust being what violates the geometrical ratio.

Remedial justice is subdivided into two: One dealing with voluntary transactions and the other with involuntary transactions. Remedial justice proceeds with arithmetical progression, treats the parts equally, thus “corrective justice will be the intermediate between loss and gain” On the whole, justice as a virtue and state of character in its inner nature is a voluntary action chosen with knowledge. Thus, to maintain socio- political well-being, one must constantly desire and choose to do justice.

Aquina’s View on Justice:

According to Aquina, justice is a matter within intercourse between humans. Thomas Aquinas made even clear his master’s point. For Aquinas, the proper matter of justice “Consist of those things that belong to our intercourse with other men”, hence justice is rendering the other his due or right. This rendering of the other his due, for it to qualify as virtue, must be done knowingly, consciously or voluntarily and with choice and done on permanent basis, which indicates firmness in the act and disposition. One who does what he ought to do does not by that bring gain to the person who receives that act, for he has simply abstained from doing harm, ( a harm which will have to be remedied or corrected in order to restore the equilibrium), but “he does however profit himself in so far as he does what he ought spontaneously and readily, and this is to act virtuously.

Therefore, to Aquinas, justice implies equity towards the other. It is in the fact that justice regulates human acts that it is a virtue. He agreed with Aristotle that the virtue of a good citizen is general justice “whereby a man is directed to the common good”. The justice that directs to the common good is general, that is, legal justice, and that which simply regulates the relation of the individual and to the other is particular justice, directing a man immediately to the good of another individual.

David Hume’s Views on Justice

According to David Hume, Justice is an artificial but necessary virtue. Hume said that the disposition to grant others their due is not a natural one because people are naturally determined by their passions to be partial to themselves. This understanding excludes the argument that honesty or justice is motivated by a natural instinct or that it is derived from some general virtuous disposition, hence Hume denied that justice is a natural virtue.

It is rather a product of social evolution /or convention intuited on the basis of utility, “thus self-interest is the original motive to the establishment of justice, but a sympathy with public interest is the source of moral approbation, which attends that virtue”.

Although it is not natural, Hume believed its rules were not arbitrary. When Hume relegates the role of reason to that of the slave of passions, he does not necessarily claim that social rules of justice are no longer observed. Feeling does not necessarily operate in a situation of anarchy.

People respect the goods of others on the supposition that others will do the same, hence Hume insisted on a convention without the interposition of a promise. According to Hume, the rules of justice operate on the basis of experience. “Two men, who pull the oars of a boat, do it by an agreement or convention, though; they have never given promises to each other. However, social justice operates within a scheme and it is not reducible to individual instances of acts of justice, which may be contrary to overall aim of public good.

Therefore, to maintain order and equitable distribution of services as established by the artificial virtue – justice, society invents general rules. General rules have, for their end, the maintenance of public goods. General rules of society owe their institution to the need for justice in society, albeit its rules are artificial.

What does a common man say then about Legal Justice?

Regarding justice within the confines of legal philosophy, three basic couplings of assertions can be distinguished, namely:

1. Procedural Justice
2. Formal Justice, and

• Justice as measure for the law

To explain in law, one has to assume that law, to a greater extent, is made of system of rules.

If a policeman catches B in a scene of a crime, and denies him legal aid or assess to the information he is supposed to have before the law, there is an infringement of procedural justice. In Nigeria, criminal cases such as murder have to be introduced first in the magistrate courts for onward submission to the criminal court through the office of the Director of Public Prosecution, it will be a matter of breach of the due process of law to manipulate the process, hence a denial of procedural justice. So, if rule N says that all who violate it will be punished, and those punishing do not take proper care to find out those who have broken the rule, then there is breach of procedural justice.

Bur where in applying the rule, judge B punishes M, and leaves Q who committed the same offence, either because Q is his brother or he hates M, there is a breach of formal justice. This is the same where people are punished selectively or indiscriminately under the law without any universal criterion or standard for all those to whom the law applies, then there is breach of formal justice for like cases then, are not treated alike.

It is possible to have a coherent system of law or rules with due procedural or formal processes, yet injustice may abound. Some positivists, notably Betham, Austin, Hart and Kelsen, have argued that law remains law whether or not it is iniquitous. Procedural justice and formal do not necessarily guarantee justice, hence some argue there is a substantive justice that ought to be a measure of law. Naturally lawyers are correct to insist that there is a set of higher principles that should found law, and its judgments are discernible by human rationality. Thus, legal guarantees are not co-extensive with extra- legal intuitions, hence there is need for a standard, and instead of law narrowing justice; Justice should stand as a measure of the law.

SELF-ASSESSMENT EXERCISE

Can a theory of Justice ever be politically neutral?

CONCLUSION:

It will be pertinent to conclude that things will go for better for everyone if people do that for which they are naturally gifted, allowing those who have the highest gift to lead, hence avoiding a political back clash. Plato affirms that a political mess will be avoided when, “either the stock of those who rightly and genuinely follow philosophy acquire political authority, or else the class who have political control be led by some dispensation of providence to become real philosophers. The state, therefore, exists to further needs of humans, their happiness, and development in the good life according to the principles of Justice. Just as the rational element is the soul of the body, so also justice is the soul of the state.

SUMMARY

To talk about justice is to make a commitment to seek the good and the fair. The good and the fair may belong to universal categories, right reason determines the measure in which particular instantiations of the basic principles of natural law that good be done and evil avoided or that one treats the other as he himself would like to be treated – may be determined.

TUTOR MARKED ASSIGNMENT

1. What is Justice?
2. Explain the following concepts:
   • Distributive Justice
   • Remedial Justice (c). Correctional Justice

• What is equity?

REFERENCES/FURTHER READING

Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law Publishing.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and Maxwell Ltd.