MODERN QUEST FOR JUSTICE
In general, the roots of the modern Western quest for discovering reason-based principles of justice go back to the end of the Middle Ages. That period saw the rise of the modern nation state through intense conflict: (a) between rival views on organizing society, (b) the competing jurisdictional claims of the Church, feudal barons, and medieval parliaments against monarchs, and (c) the external struggle for conquest under the influence of mercantilism. Under the circumstances, there was a clear arbitrariness in distributing social dividends and burdens that prompted social philosophers to ask: how can an orderly and harmonious social system emerge from the pursuit of competing self interests? How can social organization be redeemed from warring concepts of common good? And, how can individuals be protected against arbitrary state action and confiscation? The erstwhile Greek and Christian traditions, albeit helpful, did not provide satisfactory answers. In any case, splits in opinion among the clergy challenged whatever commitment remained to that vision. Under these circumstances, two influences are said to have played a key role in forging a new ethics of equality and liberalism. First, the Islamic and, second, the Roman tradition. As regards the former, Wells (1961) writes:
And a century or so in advance of the West, there grew up in the Moslem world at a number of centres, at Basra, at Kufa, at Baghdad and Cairo, and at Cordoba, out of what were at first religious schools dependent upon mosques, a series of great universities. The light of these universities shone far beyond the Moslem world, and drew students to them from east and west. At Cordoba in particular there were great numbers of Christian students, and the influence of Arab philosophy coming by way of Spain upon the universities of Paris, Oxford, and North Italy, and upon Western European thought generally, was very considerable indeed. (p.626)
Robinson (1996) also confirms:
recent scholarship has come to find the roots of medieval scholasticism and the development of universities in Muslim influence. It has even gone so far as to find the origins of Renaissance humanism in that of classical Islam. ‘I have read, reverend fathers’, Pico della Mirandola begins his oration The Dignity of Man in the late fifteenth century, ‘that when Abdala the Saracen was asked what he regarded as most to be wondered at on the world stage … he answered that there was nothing to be seen more wonderful than man.’ (p.xxi)
Insofar as Roman influence is concerned, this came through their civil code. The Roman code, as presented in a sixth-century document, Corpus iurus civilis compiled by Justinian, was primarily concerned with providing legal protection to commercial activity and private property without entertaining any given view of righteousness or virtue. The state, in this concept, was a privileged legal or constitutional order with sovereign jurisdiction over a geographical territory. These insights inspired the tradition of natural jurisprudence at the hands of Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679), Samuel von Pufendorf (1632-1694), Baruch Spinoza (1632-77), and John Locke (1632-1704).2 It was argued that individuals were to be considered as equal and ends in themselves rather than as means to the happiness of others. This was possible only if the state allowed the pursuit of pluralistic concepts of good in a society, and placed minimal demand on individuals by respecting their rights and restricting the domain of their political obligations to what could be deduced from noncontroversial rational premises, for example, self-preservation.
During the seventeenth and eighteenth centuries, these arguments turned the tide gradually in favour of viewing social order in terms of achieving the goals of freedom and opulence. Free market exchange began to be seen as preserving freedom and/or aligning these goals. As Kolm (1996, p.59) says, this tradition, called in its fully evolved form Libertarianism/Liberalism/Full-process freedom is the historically original, founding, and central theory of modernity.
Libertarianism
Libertarianism stands for the type of social arrangements that guarantee each person the greatest amount of liberty commensurate with the same liberty for all (Sterba, 1992). But what does liberty stand for? Why has it to be the core value of a social order? What are the demands of liberty? How do these demands translate in terms of the role of government in a society? These are some of the questions that we examine below.
Liberty is important, it is said, because it constitutes the essence of our being. It reflects the agency aspect of a person’s being in that it refers to what a person is free to do and achieve in terms of forming aims, objectives, allegiances, commitments, and plans of action in accordance with some overall concept of good that he chooses to value. It demonstrated that a person endowed with will can take actions that are caused by that will and influence the world. The more an action is caused in accordance with the will of a person, the freer that action is (Sen, 1985; Kolm, 1996, p.38).
Sen (1993) elaborates upon at least two aspects of the liberty to act. First, there is the opportunity aspect that refers to the real opportunities (means) that one has in order to achieve what one has reason to value. Second, there is a process aspect that refers to the freedom of aims and acts. It is this process aspect that has been the major concern of libertarians and that, in turn, consists of two elements: the autonomy of individual choices and immunity from interference by others. The crucial issue in case of autonomy is whether choices are being made by the person concerned rather than by other individuals and institutions on his behalf. For immunity, the focus usually is on ‘negative freedoms’, i.e. the absence of obstacles external to a person – coercion and legal prohibitions – that prevent wilful action.
Traditionally, libertarians have stressed the importance of negative freedoms by emphasizing that a person has inalienable rights to life, liberty, health, property (and this includes protection against theft, fraud, and breach of contract), the right to defend against violations of these rights, and the right to punish transgressors against these rights (Haslett, 1994, p.55). The economic implications of these rights are worthy of note. First, the distributional consequences of economic arrangements depend on the existing allocation of property rights. Thus the starting point for resource distribution has to be justified in some normative sense. Second, procedural rules for further entitlement have to be clarified in order to lower transaction costs, encourage investment, and mitigate socially wasteful effort. Third, the pursuit of certain economic goals has to be ruled out (Hausman and McPherson, 1996, pp.126-127). These requirements are catered for by rules of entitlement.
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