Panel V: Practice meets philosophy in understanding justice

Saturday, November 16, 2013 at 10:15 AM

1. Steven Forde: Sobering thoughts: Grotius and Darwin on the pitfalls of pursuing justice in international politics

2. Steve Viner: Law’s Aim: Justice, Peace, and Good Faith

3. Kirill PrudnikovSystematic Obstruction of Justice in Gujarat, India

4. Kyrstie Lane: The Search for Justice in Nepal


Steven Forde

Bio

Steven Forde is Professor of Political Science at the University of North Texas, and coeditor of the American Political Science Review. He has published in traditional political theory, including books on Thucydides and on Locke (Locke forthcoming), as well as the field of international ethics. He published an article on Hugo Grotius in the American Political Science Review (1998), and has edited the transcript of a course taught on Grotius by Leo Strauss in 1964. Some of his recent work (as yet unpublished) has involved the implications of Darwinism for political theory.

Abstract

Sobering thoughts: Grotius and Darwin on the pitfalls of pursuing justice in international politics

Much of the scholarly work in human rights/international ethics proceeds from the assumption that the pursuit of justice is the pursuit of peace, or that “there is no peace without justice.” More sobering are reflections coming from other traditions. This paper explores the ideas of Hugo Grotius, and ideas coming from evolutionary theory (for which I use the shorthand “Darwinism”) suggesting that justice may not always be the path to peace, that indeed the reverse may sometimes be true.

Grotius and Darwin are two thinkers who are not ordinarily paired. Nevertheless, I argue, they both suggest that a de-emphasis on justice in the resolution of international (and perhaps domestic) conflict is often fruitful. Grotius makes this argument within the natural-law and just-war tradition. His argument is twofold. First, in at least some conflicts, there may be plausible just-war arguments to be made for both sides, or both may sincerely believe that they are in the right, providing at least some mitigation of guilt. Second, it is often impossible for outside observers to come to a definitive judgment about which side is in the right. Where this is the case, the community of nations is not warranted in preferring one side. For this reason, Grotius argues, international law mandates a principle of neutrality. This is the reason, for example, why the right to wage war is typically granted to both parties in a conflict, without close scrutiny of their relative justice.

Modern evolutionary theory, addressing these issues from a very different point of view, suggests some parallel conclusions. The human sense of justice is an evolved capacity, whose precursors are observable in other primates. This sense serves very important social functions, allowing human beings to cooperate in societies whose complexity goes far beyond anything seen in other primates. In normal individuals, this sense includes a basic notion of fairness, of indignation at injustice (even on behalf of third parties), of willingness to enforce social norms even at personal cost, and a sense of personal guilt. More problematic, from the point of view of justice and international conflict, are some of the limitations of this sense of justice. It evolved to assist group solidarity, but this also gives it a strong in-group/out-group orientation. The result might be called natural or pre-programmed chauvinism: communities’ sense of justice will be biased and strongly self-serving in any conflict. The result is all too familiar: international conflicts based on one-sided, but ardently held and defended, notions of justice. The “pursuit of justice” is in effect the cause of the conflict, rather than the key to its resolution.

Theorists have sought various ways out of this trap, such as forging a consensus on justice between conflicting parties, or among mankind as a whole. Consensus has proven elusive, however, due in part to the evolved biases of the human sense of justice. Might it therefore be better to adopt something like Grotius’ solution, and place less emphasis on justice in conflict resolution?

Steve Viner

Bio

Steve Viner, Ph.D., J.D., is an Assistant Professor of Philosophy at Middlebury College.  He works primarily on Just War Theory, philosophy of law, and social and political philosophy.  He is a co-editor of The Morality of War:  Classical and Contemporary Readings (Pearson Prentice-Hall, 2006).  Prior to his current position at Middlebury College, he practiced law in both the public and private sectors.  Among others, he has published articles in Criminal Law and Philosophy and Philosophy and Law on punishing unjust combatants and detentions at Guantánamo Bay.  He has also published on the work of Lon Fuller and on Just War Theory pertaining to the moral foundations for the jus ad bellum/jus in bello distinction.  He is presently working on projects concerning Thomas Hobbes’s political philosophy, state legitimacy, and immigration.    

Abstract

Law’s Aim: Justice, Peace, and Good Faith

Many people criticize international laws for failing to protect, or cohere with, basic human rights, including an individual right of self-defense.  They see international laws that fail to protect or cohere with basic individual rights as laws that fail to pursue justice.  For them, international laws that cohere with basic individual rights pursue justice, while laws that are inconsistent with such rights fail to be just or implement justice.  Moreover, it is often inferred, if not made explicit, that because those laws fail to pursue or promote justice, they also fail to respect persons.  The general idea here is familiar.  Rights respect persons, and laws that fail to cohere with basic human rights fail to treat persons with respect, by failing to account for the proper moral relations between persons.

In this paper, I offer a strong caution against relying solely on the adherence to basic individual rights as the criteria upon which to base claims of justice, criticism of international law, and respect for persons.  Using Jeff McMahan’s contemporary rights-based criticism applicable to fighting in war and Christopher Heath Wellman’s and Andrew Altman’s view regarding the moral permissibility of armed humanitarian intervention, I argue that this kind of moral criticism of international law(s), i.e. founded on individual rights, can be misguided for at least four reasons.  First, it misconceives justice.  Its view of justice is too narrow, for its conception is not community-based.  Second, it does not properly account for another aim of law, which makes justice possible, that of peace.  Third, it does not account for the idea that laws that pursue peace, instead of or in addition to justice, can respect persons more so than if those laws aimed at justice.  This respect for persons is found within the creation and adjudication of those laws that seek peace and treat all those affected by the laws as if they are acting in good faith.  It is also found in their ability to create conditions for justice, including conditions in which there is fidelity to a legal system.  Finally, this individual rights-based criticism can lack relevance and even be detrimental to the pursuit of justice.  Because it can fail to give advice or inform communities (and the people within them) where to look for such advice, I argue that it can also fail as moral criticism. 

The positive argument of my paper that supports my strong caution against readily accepting individual-rights based criticism of international laws can be summarized as follows.  Law ought to aim for justice but that justice should be community-based not individual-based.  Law ought to aim for peace too, and when it does or when it aims at peace and justice, it can properly respect persons.  Though often overlooked, the third aim of law, i.e. good faith, is crucial for treating persons with respect when the law pursues peace and justice.  

Kirill Prudnikov

Bio 

Kirill Prudnikov graduated from the Monterey Institute of International Studies with a degree in International Policy Studies with a focus in Conflict Resolution. Kirill’s area interests include symbolic politics and ideology, peacebuilding, power and conflict. He received his bachelor's degrees in Conflictology and Philosophy from Saint Petersburg State University. His prior experience includes working for St. Petersburg Legislative Assembly, Office of St. Petersburg Senator and conducting field research in Nepal and India. Kirill currently works at the Center for Conflict Studies at the Monterey Institute of International Studies.

Abstract

Systematic Obstruction of Justice in Gujarat, India

Three days of 2002 state sponsored violence against Muslim community made Gujarat, a Western India state, infamous all around the world. In three days of February-March 2002, Gujarat and particularly Ahmedabad suffered from mass-scale violence. There is much evidence that the communal violence was a government-sponsored genocide in which 2.500 Muslims were killed, and 140.000 displaced. A state that once gave birth to Mahatma Gandhi became a birthplace of a neo-Nazi ideology of hate and fear – Hindutva.  The cornerstone of the ideology that attracts more and more people in Gujarat is the chauvinistic principle of one nation (Hindu), one culture (Sanskrit) and one religion (upper caste Hinduism).

Eleven years after the genocide, the BJP party, the political mouthpiece of Hindutva ideology, and its leader Narendra Modi remain in power. At the same time Muslims in Gujarat, separated in ghettos and IDP camps, live in fear and are waiting for justice.  However, instead of an official apology or fair investigation of the crimes of the 2002 state sponsored violence and punishment of those responsible, Modi and his ideology are victoriously marching through India, actively denying the 2002 genocide, along with pride and a feeling articulated as “we showed Muslims their place in society.” Moreover, the Muslim community has hardly seen any reparation and  the state refuses to provide support in any way to the Muslim community to help them overcome the violence and destruction caused to them in 2002. So far Gujarati Muslims have not seen much justice, and their basic needs are not being met. For them to return to a status of normality, the only way, as presented by the Government, is to join the developing Gujarati society by forgetting the past.

Therefore the question can there be peace in Gujarat without justice, and what does justice mean in Gujarat for Muslims, Human rights community, and the Modi’s government became a central one during the 2 weeks of the field research in Gujarat. On the ground in Gujarat, it became apparent that there are disconnects in the understanding of justice between these three groups. Advocates for retributive justice are facing resistance from the government that denies justice in any form. However, it is not apparent that the Muslim community’s demands for equal participation in society will be met just by bringing perpetrators to justice. Quite the opposite. It might worsen the relation between the separated communities and prevent any form of reconciliation. Through research conducted in Gujarat in January 2013, this paper will explore whether retributive justice, which many members of Muslim, and Human rights communities are still focusing on, will bring peace to Gujarat and heal the wounds of the Muslim community.

Kyrstie Lane

Bio

Kyrstie Lane received her BA in International Affairs and French from the University of Puget Sound, and studied at l’Université de Bourgogne in Dijon, France. She graduated from the Monterey Institute of International Studies in 2012 with an MA in International Policy Studies and a concentration in conflict resolution. In January 2012 she travelled to Nepal as part of a field course, to research peacebuilding after the country’s ten-year civil war. She has worked with the Center for Conflict Studies since May 2011, currently works at CSU Monterey Bay, and is an intern at Peace Direct USA.

Abstract

The Search for Justice in Nepal

Justice is an essential tool for healing and reconciliation, to help victims deal with trauma and to rebuild relationships in a society. Yet, as this conference seeks to discuss, justice is often one of the first casualties of the peace process, and peacebuilders are forced to ask: can peace exist without justice? A contemporary case that begs this question, and where the repercussions of a lack of justice after violent conflict may yet play out, is Nepal. Following a ten-year civil war that ended in 2006 after killing 16,000 people, among a host of other human rights violations, there has been next to no progress on post-war justice. Drawing upon findings from fieldwork across Nepal (conducted over two weeks in January 2012) and extensive secondary research, this presentation will explore the challenges of the search for justice in Nepal, and consider what some proposed courses of action toward justice – as well as the current lack of action – might mean for the future of this country.

Despite much important peacebuilding work in Nepal, justice remains woefully under-addressed. Two weeks of fieldwork and interviews across the country with non-profit workers, human rights lawyers, government officials, and more, as well as extensive secondary research, revealed a surprising array of attitudes and challenges to achieving justice in Nepal. The truth and reconciliation commission called for in the peace agreement has repeatedly been pushed aside, and those in power are loath to delve into the issue, instead calling for amnesty. Limited compensations have been given to some victims and lauded as justice. A surprising number of people say justice should be sacrificed for peace, that the pursuit of justice is too conflictual and would threaten the hard-won peace. Human rights defenders speak of the necessity of justice for lasting peace and highlight many cases of human rights violations, but most victims and their families in this extremely poor Himalayan nation slip through the cracks. And above all of this, the over-arching challenge seems to be a lack of action on any of the proposed paths toward justice, and a sense that everyone is waiting.

This presentation will discuss the many questions around justice in Nepal, and what various forms of justice (or lack thereof) could mean for the country. What might effective justice look like in Nepal? What do conflict victims and their families truly want in terms of justice? Could it be that justice is a problem best left alone for fear of provoking more conflict, as many claim? Or does the lack of justice pose a real threat to Nepal’s future and peace? Is it possible that this country could move forward in a sustainable, positive way without addressing this vital issue?