In the context of this paper I will regard lex naturalis and jus naturale
substantially as being synonymous
In
the context of this paper I will regard lex naturalis and jus naturale
substantially as being synonymous. Even if one were to distinguish between them,
relating lex naturalis to the problem of obligation (debitum morale)
and jus naturale to that of a virtual juridical order (debitum
legale), which in the name of humanity and in the absence of an international
juridical power could be made effective by official judicial authorities and
even by single individuals, (1)
there would be not be -for the purposes of the contents and their evolution-
any difference. Indeed, if -following Aquinas- we regard jus naturale
as ipsa res iusta,(2)
i.e. as a just act with regard to its object, then it is determined by the law,
whether this be natural or positive. The content of natural law is the conclusion
drawn from the use of the principles of practical reasonableness.(3)
We might say, à la Wittgenstein, that the sense of the principles of
natural law lies in their use.
AMBIGUITY OF THE PRESENCE OF NATURAL LAW TODAY
In the long history of the conceptions of natural law, there have
been numerous attempts to demonstrate its actuality and its lasting presence in
concrete historic events. Some of these attempts have gone so far as to
hypothesize an opening-up of natural law to historicity and to the mutability of
beliefs. I recall that Leo Strauss(4)
emphasized the difference between the Aristotelian conception, which - in his
opinion - was probably favourable to a mutable natural law, and that of Aquinas,
who asserted its immutability.(5)
Michel Villey is more sensitive to the mutability of natural law, influenced as
he is by the practice of Roman law, and a supporter, for this reason, of a
clearer distinction between lex naturalis and jus naturale.(6)
Others have spoken of "natural law of variable content", of "historical natural
law" and of "diritto naturale vigente" (enforced).(7)
But I do not think this is the most felicitous way of demonstrating the
permanence of the contents of natural law.
The question of the evolution of natural law obviously takes on
some theoretical importance if in some way it refers to a substantial change in
it. For it is no problem if the moral conscience of humanity evolves - it is a
problem if it is stated that the fundamental contents of ethics change. The
problem of the mutability of natural law is therefore either a false problem or
else it poses itself only for those conceptions of natural law that make no
distinction between principles and their conclusions. I am referring of course
to the modern doctrine of natural law, which, abandoning the meaning of
practical reason, has conceived natural law as a body of pre-defined, eternal
and immutable norms. But in a conception like that of Aristotle or Aquinas, for
whom natural law is the exercise of practical reasonableness and its result, the
problem of change does not exist, as the principles of natural law are
unchangeable and known to all, while their conclusions may not be known to all
and may vary to some extent according to circumstances. And it is here - as is
well known - that Aquinas makes the distinction between «ut in pluribus» and «in
aliquo particolari, et in paucioribus, propter aliquas speciales causas
impedientes observantiam talium praeceptorum».(8)
Once the idea is accepted that natural law is the fruit of
practical reasoning, the question of the proper exercise of reason becomes one
of crucial importance. It implies the identification of the prime principles and
the arguing of their conclusions. The controversial character of the principles
and the debate on the correctness of the conclusions constitute the principal
reasons for the instability of natural law in the conscience of contemporary
man.
Another source of confusion is the widespread conviction of the
identification of natural law with human rights. Human rights cannot in fact
themselves alone provide an ultimate justification and require to be justified
both in their attribution and in their exercise. It is possible to have a right
and use it badly, i.e., against natural law - it is plainly true that courts of
justice pass judgement on the correct use of rights.(9)
In the conscience of contemporary man, law in the subjective sense has separated
itself from duty, i.e., from the rule, and this has destabilized natural law, to
which both law in the subjective sense and the norm belong. Rights are
attributed on the basis of natural law, but when they are ill used they
contravene the principles of practical reasonableness which nonetheless belong
to natural law. A conflict is thus created within natural law itself.
On the basis of these considerations it seems to me particularly
necessary today to reflect on the manner of interpreting practical
reasonableness, on its principles and on its articulations, bearing in mind that
here inevitably we come upon the question of natural law and its contents. From
this point of view, contemporary juridical and political culture is going
through a phase of ambiguity, because on the one hand it is particularly open to
natural law and on the other it is certainly not favourable to the stability of
its contents.
Law is born out of reason and then becomes an act of volition.
The need for a co-ordination of social actions gives rise to rules that time
purifies in the test of reason. Social stability helps to preserve these rules
from change, protecting them with the mark of authority. What is born as the
rule of reason is reclassified as a source of law in a positivistic sense.(10)
But in this way the principle of authority prevails over practical reasoning and
the demand for stability of the contents of positive law does not always allow
it to adapt to the complexity of concrete problems. Today, from different points
of view, we are witnessing a profound transformation of the juridical-positive
structure of the past - now law must once again knock on the door of reason,
i.e., of natural law.
However, if we take another point of view, that of contemporary
pluralism, of the widespread refusal to accept that there are models of
behaviour valid for all persons - even only those belonging to one and the same
political community - and to believe that the solutions to todays problems may
be valid for those of tomorrow, then recourse to reason and to reasonableness
will take on a purely contingent character with regard not only to the
conclusions but also to the very principles themselves. And this is not
favourable to natural law and the stability of its contents. The return to
reason is therefore not sufficient to rediscover the meaning of natural law, as
this is related to a specific use of reason and practical reasonableness.
It is my belief that a supporter of natural law has today two
obligations: the first is to show that the juridical reasoning actually
practised in courts of justice is from the point of view of argumentative
structure not in conflict with the use of the reasonableness that is proper to
natural law; the second is to show that the tradition of natural law is able to
provide the most appropriate justification of the principles of practical
reasonableness. Here I will seek to indicate in summary and very general fashion
how - in my opinion - these two tasks should be performed.
THE PRINCIPLE OF REASONABLENESS IN
POSITIVE LAW
It is an incontrovertible fact that the principle of practical
reasonableness has now attained the rank of constitutional value. The
constitutionalization of human rights necessarily implies the consideration of
reasonableness as a constitutional value, even if it is not explicitly
formulated. This means something more than the observation that the quality of
reasonableness is prescribed for the exercise of all public functions (and
therefore also those of the Constitutional Court).(11)
This means that the constitution is not a table of values and principles to be
applied in the automatic manner of subsumption, which is the directive idea of
juridical rationality, but is rather a set of orientations that takes on a
precise appearance and an organic composition only in concrete cases. It is the
language of principles that suggests the idea of a process of law that starts
with the constitutional text but is fully achieved only in its application, of
which ordinary law is itself the first step and the constitutional sentence is
the last.
Application of the constitution is not the same thing as
application of a law. Traditional literal and logical interpretative methods are
not enough for a constitutional judge. What are necessary are substantial
confirmations of conformity to the constitutional law and forms of judgement
that are clearly oriented towards an assessment of the consequences of the
legislative act and towards a verification of the material rationality of
normative prescription, i.e. of its capacity to achieve objectives of social
well-being and to relate the means and ends of state action in a reasonable
relationship.
Now, the general rule in this process is precisely
reasonableness. Reasonableness is thus a much more comprehensive and basic
concept than the juridical concept of subsumptive rationality. It is at once -
according to constitutional jurisprudence - a means-concept and an
end-concept, a technique and a goal that juridical processes have to strive
for. Reasonableness is a means for the satisfaction of values and is itself a
value without which other values could not be adequately achieved.(12)
It is part of the spirit of constitutionalism that human dignity
should be not merely an abstraction but rather something to be respected to the
greatest possible extent. If that is the case, reasonableness is necessary both
because of the statute of the "ultimate end" (i.e., not subordinate) of
fundamental rights and because of the need to meet the demands of the
expectations of particular events in life, the demands of concrete cases of
justice.(13)
In an ethico-juridical regime governed by the ethic of rights, as
we have today, the principle of duty - necessary for the practicability of any
ethic and intended as a measure or, in one word, as a "rule" - is entirely
concentrated in reasonableness.(14)
Reasonableness transforms principles into rules. This value expresses, for
individuals, the need to give to their actions, habits and customs a general
order sensitive to integrity and authenticity,(15)
while for communities it is an occasion to harmonize the expectations of their
members in order to guarantee certainty as well as justice. At the end of the
day, every juridical initiative justifies itself on the basis of practical
reasonableness, i.e. of the need to co-ordinate social actions not in any way
whatever but according to fairness and justice.
The constitutional doctrine of European and non-European
countries is endeavouring in different forms to define more precisely what
exactly the "judgement of reasonableness" consists in, on the assumption that it
possesses an identity of its own with respect to other decisional processes
employed by constitutional judges.(16)
The evolution of the constitutional judgement of reasonableness
clearly records its progressive autonomy from the judgement of equality when we
realize that this judgement is not merely formal and necessarily implies value
judgements that require to be justified. We consequently perceive that the
judgement of reasonableness in the strict sense no longer possesses an
intra-systematic character, i.e. internal to an already established set of
norms, but has an extra-systematic character, inasmuch as it evaluates a
norm on the basis of parameters that are in some way "external" and can be found
juridically in constitutional values related to judgements of functionality,
suitability and proportionality, as also of equity.
A further step in this direction is made when it is necessary to
operate a balancing of rights. In this case it is particularly evident that an
interpretative-type technique of judgement is flanked by a predominantly
argumentative type of process. This balancing is itself a form of decision that
is not derived from a judiciary syllogism, but on the contrary is intended to
formulate the judgements of value that are necessary for the selection of the
premises of the syllogism itself. Here reasonableness achieves its maximum
independence from the merely applicative functions that are usually attributed
to a judge.
In reality the technique of balancing initiated by a
constitutional judge is legitimate only if it is possible to demonstrate that
the paths of reasonableness that have been tried are very different from the
logic of political convenience and from ideological choices. As Bickel has
observed, courts of justice do not compete with the rules of democratic
representation only inasmuch as they offer it a contribution that only they can
give, i.e. the contribution of arguments related to an institutional history and
not to political contingency.(17)
These reasons refer directly to values that are widely accepted and are
absolutely indispensable for civil co-existence, values that are profoundly
sensitive to equal respect for all persons, without which the procedures of
democratic representation could not function correctly.
It would be possible to demonstrate a similar evolution of the
concept of "reasonableness" in relation to international law and the use of such
a principle by the International Court of Justice and in the interpretative
practice of international treaties. I must not dwell long on the subject,(18)
but I can say that here too the attractive force of the idea of reasonableness
induces one to seek the maximum possible achievement of justice in concrete
circumstances marked by the normative equality of national states. We may
therefore consider reasonable all those solutions which tend to make
international society more respectful of individual and collective rights, in
the least conflictual manner, and which increase the possibilities of
co-operation and understanding.
It is not rare to find pronouncements by the International Court
of Justice that refer to intentions that may reasonably be attributed to
States as a function of circumstances. More generally it is said that the
purpose reasonably pursued by a State is to be taken into consideration.
But this is evidently a juridical construction: it is rather the purpose it
should have pursued rather than the purpose it did in fact pursue. The
expression "should have" does not suggest an ideal model of behaviour but rather
that which we might have expected, given the current condition of the
international order. And yet this does not merely indicate an adaptation to a
status quo dominated by sovereign States, because it is undeniable that
objective obligations that are above the will of States are increasingly common
in international law. Jus cogens is one of the fruits of the exercise of
reasonableness in international juridical practice.
To insist that this method of reasonableness follows (or should
follow) standards that are nevertheless juridical and not extra-juridical makes
sense only on condition that it does not exhume the old dispute between natural
law and legal positivism(19)
and provided it takes cognisance of the fact that international legality does
not reside in the empirical will of States but in the interpretation made of
this by a juridical practice that is already marked by fundamental values and
specific guarantees. In the absence of the social consensus of a specific
community (whether national or international), it may be assumed that there are
resources internal to juridical practice for the determination of the concept of
reasonableness - some goods are properly speaking juridical inasmuch as they may
be obtained only through the law and enjoyed within the law, i.e., within the
practice of legality.
THE FORMS OF
REASONABLENESS IN POSITIVE LAW
If we take even a cursory look at the forms of juridical
argumentation adopted by constitutional jurisprudence, which in this respect is
for obvious reasons much more advanced than international jurisprudence, we can
see that certain typical common paths of reasoning are beginning to be
identifiable. These are not exactly "argumentative techniques", as each of them
sets itself an objective that could be achieved by different technical
procedures. In general, we are all agreed that there are reasonable and
unreasonable ways of doing certain things. And we might add that what is in this
sense "unreasonable" also appears "unnatural", i.e. contrary to the "nature of
things". This means that forms of reasonableness must take into account the
social and historical contexts in which they operate.
If we consider the problem from this extremely comprehensive
viewpoint, we will notice that a comparison between the jurisprudences of
various constitutional courts reveals «una certa koiné degli strumenti
argomentativi».(20)
There are of course notable differences, because the constitutional practice of
reasonableness depends on the cultural conception of "a constitution". For
example, argumentative processes are indubitably affected by the question
whether or not a specific constitution has formulated values according to a
hierarchy of priorities. However, despite all the possible variants, we are able
to identify some maxims of "common sense" or "sensible" maxims that are present
in the constitutional practice of different countries. Here I can indicate only
a few, but only somewhat approximately and incompletely:
A legal decision that without an acceptable justification damages
a fundamental value or prevents its realization is not reasonable (criterion
of legitimacy).
It is reasonable to limit a fundamental right only if this is
justified by the necessity to protect an essential public interest(21)
or another fundamental right (criterion of necessity).
A measure restricting a fundamental right is reasonable if,
besides being necessary, it is the only practicable means or the mildest of the
practicable means available (criterion of least damage).(22)
It is unreasonable to formulate a measure restricting fundamental
rights in terms so vague as to allow extensive interpretations (criterion of
determinateness).(23)
It is unreasonable to limit a fundamental right to the point of
substantially nullifying it (criterion of essential content).
It is reasonable to require that preordained legislative means
should be adequate (or not patently inadequate) for the achievement of the
purpose (criterion of adequacy).(24)
It is interesting at this point to observe the similarity between
these argumentative jurisprudential constraints and the methodological
exigencies of practical reasonableness that since time immemorial have been the
object of philosophical reflection. Their presence shows that practical
reasonableness itself is a fundamental value that is necessarily present at the
moment of the achievement and realization of the other values. Substantially it
is a question of the value of the rule and of the measure, without which value
the participation in other values would be rendered false or impossible. It is
not sufficient to aim at a fundamental good - one must do so with a sense of
measure and order, otherwise one will be at the mercy of the "tyranny of
values", with devastating effects.
John Finnis has spoken of the «basic requirements of practical
reasonableness», recognizing therein the «method of natural law», i.e., the
specific way in which it is possible to draw the moral principles of natural law
from first practical principles.(25)
I do not mean to say that there is complete identity between these maxims of
constitutional jurisprudence and the exigencies of practical reasonableness
identified by philosophers, although one cannot avoid in some way justifying the
mutual similarity.
The principles from which a judge draws his conclusions on the
basis of reasonableness are not the first principles of natural law, but
constitutional rights, i.e., principles already in some way positivized that in
turn are conclusions drawn from more fundamental principles. But at this point
the positivist constitutional judge calls a halt: he does not return to the
principles of natural law, and invokes as his constraint social consensus, i.e.
positive morality, interpreting constitutional values as the public ethic
actually accepted by the members of a society. Social consensus plays the same
role of the first principles of natural law, with the difference that it is (or
is at least thought to be) an empirical fact.
What I am most interested in showing here is the closeness
between the argumentative structure of juridical reasoning, applied to rights
and constitutional values, and that of the tradition of natural law. But the
difference, which is certainly not a matter of little account, lies in the way
of considering principles and of understanding their content. Each of us sees
how important this difference is as regards the permanence and stability of the
content of natural law.
PLURALISM AND
JUSTICE
I certainly do not intend to tackle here the difficult problem of
the justification and foundation of the first principles of natural law, as I do
not wish to lose sight of the reference to current juridical and political
practice. I will limit myself to observing that the substitution of social
consensus for the first principles of natural law is not in itself convincing
and is no longer acceptable in todays context.
The criterion of social consensus no longer functions as a
univocal constraint for the judge. Constitutional courts all over the world are
accused of deciding on the basis of their political and ethical criteria.
Political societies have lost the compactness of their basic culture and, as a
result, social consensus on a nucleus of shared values - and especially on the
manner of interpreting them - is breaking up. Even the concerted appeal to
rights reveals itself to be a fragile form of unity when we observe how
differently these are interpreted and practised. The conviction is therefore
strengthened that only through the reasonableness of ends (and not only of
means) will it be possible to face pluralism. In this sense a return to natural
law in the full sense becomes necessary. However, at this point, I must pass
from the philosophy of law to moral and political philosophy, whatever value
such distinctions may have within the realm of practical knowledge.
It is significant that the current debate in political philosophy
is so strongly attracted by the question of reasonableness and public reason.
Today reasonableness is generally understood as a willingness to
take into account the consequences of ones actions for the good of others,
i.e., an attitude that predisposes one to participate in a co-operation that is
fair, respectful of others as free and equal persons, and characterized by
reciprocity. To be reasonable means to recognize that others have the same
rights to pursue their aims and that therefore it is necessary to seek
conditions that are acceptable to all.(26)
A reasonable person perceives as a fundamental value that is an end in itself a
social world in which all can co-operate as free and equal individuals, on
conditions that are acceptable to all, in full reciprocity and with mutual
benefit.(27)
What meaning are we to give to this way of understanding the
reasonable person? There may be many meanings, not necessarily all mutually
compatible. But it undoubtedly expresses a
perfectly clear general tendency that is excellently put in the words of an
Italian constitutionalist: «"ragionevole"... è colui che si rende conto della
necessità, in vista della coesistenza, di addivenire a "composizioni" in cui vi
sia posto non per una sola, ma per tante "ragioni". Non lassolutismo di una
sola ragione e nemmeno il relativismo rispetto alle tante ragioni (una o
laltra, pari sono), ma il pluralismo (le une e le altre, per quanto possibile,
insieme)».(28)
The fact of pluralism is understood as the Kantian "fact of
reason", i.e., as the institution of a new condition of truth between absolutism
and relativism, between the only truth and no truth. Absolutism would mortify
pluralism inasmuch as it would delegitimize opinions not in conformity with the
only truth; relativism would deprive pluralism of all epistemic dignity. We do
not content ourselves with having our preferences satisfied: we want our
preferences to be recognized as right and proper. And this is not hard to
understand, for in this way such preferences have social dignity and are not a
mere caprice. But it is impossible that at one and the same time A and non-A
should be right and proper, as we learn from the no-contradiction principle of
classical metaphysics.
It is no fortuitous matter that the conception of justice that
seeks to attribute philosophical significance to this demand is clearly Hegelian
in origin. Michel Rosenfeld has thus defined his "comprehensive pluralism": «in
a contemporary pluralistic society there are many competing conceptions of the
good, each good in itself, but none good enough to be embraced by all. Under
these circumstances, it becomes imperative to imagine an overriding conception
of the good which would encompass all others in the context of an elaboration of
a community of communities. While working on breaking free from the impasse
resulting from clashing visions of the good, it should become apparent that
there is no escape from plurality, but the plurality of conceptions of the good
can itself become a good - or, more precisely, the good that may bind together
other goods. And once this becomes accepted, all that can be done is to embark
on a dialectical quest to harmonize the plurality of goods ».(29)
It is characteristic of Hegelian dialectic to embrace all the
opposed conceptions of truth and good in a single process and in a supreme
synthesis, but this is possible precisely on the basis of an "absolute
knowledge" that is certainly not the outcome desired by contemporary pluralism.
For this reason Rawls has more prudently left the question of truth and good
outside the door of political justice.(30)
In his opinion it is not political philosophy that has to resolve the
epistemological difficulties of pluralism. Its task is only to design fair
institutions in the cultural conditions prevailing today. I will now consider
whether this is possible without taking into consideration the principles of
natural law, and as a paradigmatic case I will take the thought of John Rawls.
THE PRINCIPLE
OF CO-OPERATION
Rawls use of reasonableness rests entirely on the "principle of
co-operation", without which no civil social existence could ever develop.(31)
Even in a plural society, by virtue of its being a society, the mere
co-ordination of actions that might derive from strategic action or rational
choice is not sufficient. It is not sufficient because a society needs some
common quality if it is to be something other than a mere modus vivendi.
But there is no common quality when it acts simply on the basis of expectations
of other peoples probable actions. There must also be a co-operative attitude,
which however in consideration of pluralism cannot consist in a previous sharing
of purposes.
No one deny both the necessity of social co-operation and the
idea of a fair system of social co-operation. But one may ask oneself whether
this idea can itself alone take on the role of the principle of justice without
any presupposition. How can we judge whether a system of co-operation is fair
without presupposing the characteristics of the persons who co-operate and of
the good that has to be distributed? Strangely enough, in Rawls thinking, the
idea of equal, i.e. reasonable, co-operation comes before the concept of person
and indeed it is precisely the idea of the right terms of co-operation that
shapes the characteristics of the persons who participate in it.(32)
In this way political theory closes in on itself and has no need to turn to
"external" anthropological or ethical principles.
What do ordinary "free and equal" persons, as such, have in
common? One might answer: nothing at all! The equality of equal beings does not
in itself imply commonality and reciprocal aid. On this basis alone it would not
be possible to understand the reason for co-operation. Why should people who
consider themselves to be "free and equal" wish to co-operate? But to Rawls way
of thinking such questions are meaningless inasmuch as persons can be thus
considered only if one presupposes the idea of fair social co-operation: i.e.,
such persons are already "citizens" or political persons, endowed with
co-operative attitudes. But this has every sign of being a case of petitio
principii: here the nature of society is not drawn from peoples way of
being - on the contrary, it is they who configure themselves on the basis of a
presupposed idea of fairness. But where is this idea of fairness taken from? A
supporter of natural law would have recourse to a principle of natural law, but
for Rawls the matter is a postulate of political theory. Nor are these points of
view that might ultimately be compatible, for from the manner of derivation of
the principle of co-operation it is also possible to infer its interpretation
and the use within it of the exigencies of practical reasonableness, as more
careful analysis will show.
A central element of Rawls principle of co-operation comes from
the idea of reciprocity, according to which all those who co-operate in
obedience to established rules derive an appropriate benefit.(33)
It must therefore be recognized that behind Rawls principle of co-operation
there is always the factor of personal interest. It must be clarified at once
that this idea of reciprocity is halfway between the altruistic idea of
impartiality and the egoistic idea of reciprocal advantage. We therefore find
ourselves with three models of political justice: the impartial model, which
consists - as Barry pointed out - in taking everyones point of view into
account and acting without considering self-interest;(34)
the model of reciprocal advantage, which takes into account the constraints that
induce a person guided by self-interest to pay the lowest price possible to
obtain the co-operation of others; and the model of Rawlsian reciprocity, which
does not consider the exchange in particular but rather a general system of
co-operation that assigns to all the same basic rights and duties and
establishes rules for a fair distribution of the benefits produced by everyones
efforts. This last is different from mutual advantage since it is not motivated
egoistically, i.e. also at the cost of damage to others, and it is different
from impartiality since it does not eliminate personal interest, inasmuch as no
one would support a social order without expecting some advantage from it. It is
therefore, to use Adam Smiths term, a case of uninterested interest.(35)
It is important to note that this idea of reciprocity pursues two
objectives: that of not renouncing self-love and that of finding some
commonality among persons. Both these exigencies seem to be worthy of our
attention. There is however much to contest with regard to the way Rawls seeks
to pursue them and to the manner of their justification. And it is precisely
from this angle that I wish to demonstrate the superiority of the principles of
natural law.
To put it in short, Rawls strategy is to elaborate the concept
of a political person who, though aiming at his own interest, adopts principles
of action that can be accepted by all. Rawls would say that this requires the
conception of a person detached from his own ends (the unencumbered self)
and from his own identity.(36)
Only the person who has the moral power to suspend the point of view that
identifies him can defend principles that all can accept. This is also a
conception of reasonableness in political life. A person is reasonable when he
is ready to propose - and to accept when they are proposed by others - those
principles that are necessary to specify what can be accepted by all as fair
terms of social co-operation.(37)
Reasonableness is the capacity to be sensitive to what others are able to
accept. We cannot ask sacrifices of others which they cannot accept. In the
absence of social consensus because of pluralism, it is necessary to construct
the conditions of "ideal consensus" by means of the neutralization of all
personal points of view. What is at stake is clearly the idea of the common
good, i.e., of a common accord regarding principles that can (and must) be
accepted by all.
How is one to know what can be accepted by others? One might ask
people in the public square. But this way - according to Rawls - would be too
empirical and contingent, and certainly inappropriate for the construction of a
political theory. Nor can one subscribe to Kants idea that everyone discerns
moral law thanks to practical reason, which satisfies rigorously cognitive
demands, because according to Rawls one can expect from a contracting party only
decisions that are rational as regards their purpose. The only thing left to do
is, within the person, to isolate reasonableness from rationality so that on the
basis of reasonableness one may propose to others equal, and for that reason,
acceptable terms of collaboration. But in this way what remains obscure and
unjustified is the type of bond that people have between them. Everyone hopes
that co-operation will provide more benefits than one might obtain by remaining
alone, but that is not sufficient to adequately justify the relationships and
bonds that people have between them. Consequently, the idea of the common good
is also merely instrumental to the interests of persons seen as single
individuals.(38)
When all is said and done, Rawls prime principle from which he derives social
co-operation is always only that of reciprocal advantage, and from this one
draws a conception of justice as reciprocity, which remains within this paradigm
and is certainly not an alternative model to it. We might call it the conception
of "mutual far-sighted advantage".
THE GOLDEN
RULE
I now wish to show that the just attempt conjugate self-love with
the common good - certainly present in Rawls thinking - could be adequately
achieved by having recourse to a traditional principle of natural law, that of
the Golden Rule.
Both in its negative formulation ("do not do unto others that
which you would not they did unto you") and its positive formulation ("do unto
others as you would they should do unto you") the golden rule substantially
states the principle "Love your neighbour like yourself".(39)
This principle is so widely present in nearly all cultures and religions that it
can be numbered among the éndoxa of all mankind, i.e. among the moral
intuitions rooted in the general practice of social life.(40)
Its normative role has however been subjected to such criticism that one cannot
help thinking that it is at most a maxim of common sense or that it is valid
only in relation to some religious faith;(41)
whatever the case, it can be excluded as the basis of any ethical or political
theory.
These criticisms have been taken up by Hans Kelsen, following
Kant,(42)
but they are totally unfounded. On the one hand, it has been affirmed that the
golden rule leads to such contradictory results as to be ruinous for law and
morality, while, on the other, it has been argued that even if one accepts its
validity the golden rule is tautological and empty, and consequently cannot
provide any true and proper moral directive. Only the second order of objections
is however worthy of consideration.
The golden rule, if we consider it, leads to contradictory
results only when one takes it to mean that one should wish for others that
which one wishes for oneself without qualifying this wish in a strictly
normative sense. One cannot transform ones own personal preferences into the
preferences of others and, consequently, be obliged in this way. We are
obviously not dealing here with personal preferences or inclinations. The
meaning of the golden rule is without a doubt as follows: the good that I would
like to be done to myself, i.e. that I desire as a good for myself, as
my good, must be desired as a good for others, i.e. as a good for all
and a good per se. In his comment on Matthew 7.12, St Augustine had
already noted that in the traditional formula of the golden rule one has to
infer the term "good", i.e. one must do unto others that which is good, and that
this is implicit in the reference to will, which is the faculty of that which is
good, while greed, not will, is proper to evil actions
(43).
It is this specification of the formulation of the golden rule
that is the object of the second and more serious criticism. This seeks to show
the uselessness of the golden rule in determining rules of moral rules and
behaviour. Indeed - says the objection - if only morally justified desires are
important, one is presupposing the existence of a normative order that
determines which desires are morally justified and which are not. The golden
rule would therefore not be the first principle of moral life - it would be this
presupposed normative order. The golden rule consequently becomes purely
tautological or empty as it finishes simply by stating that I must treat others
as others must be treated, i.e., applying general norms impartially, in other
words without making any exceptions. But the golden rule does not in itself say
what the content of these general norms should be, but only that once the norms
are presupposed they must be applied without exception. Going by the golden
rule, one would not be able to examine the content of moral norms but only
reaffirm the manner of their application, which in any case would be
superfluous.
It is not in fact true that the golden rule plays no part in the
determination of the content of moral norms, for no one can deny that at least
it excludes the validity of all norms discriminating between people. It
maintains that the single person to whom an imperative is directed and the
others (all persons) towards whom his behaviour is directed all belong to the
same category of beings and that it is forbidden to make discriminations within
this category. It affirms the substantial equality of all persons with regard to
the good and, at the same time, their commonality in that good.
If we formulate the golden rule in the following terms: "I must
do (or not do) to others what I justifiably desire (or do not desire) for
myself", the difference from Kants principle of universalization will appear
all the clearer. This principle completely excludes any reference to a
subjectivity desiring the good and concentrates on the fact that it can be
accepted that the maxim of ones own action may become a prescription that is
valid for all in similar circumstances, i.e. a universal law. But in this way we
separate the desire from its justification and the good becomes a duty.(44)
For there to be a good, there has to be desiring subjects, in the same way as
the sense of value lies in participation in that value. Now, the golden rule is
criticized precisely because it does not admit this separation between desire
and its normative justification, but it is also precisely here that its
significance lies: the universal and communicative desire of good.
The measure of this commonality is given by self-love if this is
meant not as an attachment to ones personal preferences and life projects, nor
even as the possibility of a separation of oneself from myself in
order to enucleate a detached and neutral ego, but rather as an attention for
all the basic human aspects that every man finds before him and for which reason
- as Aristotle says - he must be "his own friend".
The proof of self-love, i.e. the verification of its rectitude,
is given by the fact that it is not in opposition to love for another. If, in
himself, man loves what is human, then love of ones neighbour is something
natural.(45)
I cannot love another for what he is other than on the basis of loving oneself
for what one oneself is, on the horizon of similitude. A friend is "another
self".(46)
The similitude permits a link between self-esteem and solicitude for another
person. I cannot rightly esteem myself without esteeming the other like
myself.
And here we come upon the idea of reciprocity that is peculiar to
the golden rule: each man loves the other for what he is for himself.(47)
To love another for what the other is corresponds to loving oneself for what one
oneself is, which is the self-love of the golden rule. It is possible to put
oneself on the side of the others point of view only on the basis of the
communication of perspectives.
A distinction has been made between "mere reciprocity", thanks to
which one recognizes that the other man has his own point of view, and
"reversible reciprocity", thanks to which one identifies oneself in the other
mans perspective.(48)
This distinction does not exist on the level of the golden rule that supports
the communication of perspectives in the framework of basic human values. It
introduces the notion of humanity as a mediating term between the diversity of
people, overcoming the dissymmetric character, due to otherness, of an
intersubjective relationship. Whatever the case, owing to the golden rule,
"reciprocity" does not mean "mutual advantage", even in the long term. It does
not say: "do not do unto others that which you would not they did unto you if
(and only if) they do not do it unto you". In this sense it prescribes the love
of benevolence and prefigures social relations between «givers of gifts».(49)
In the golden rule there is therefore self-love and the principle
of benevolence. But this is a very general and comprehensive horizon that
regards all moral life and the multiplicity of intersubjective relations. On the
plane of social and political ethics the golden rule introduces the principle of
solidarity and mutual aid. As there is a general commonality with regard to
basic human goods, to promote them for others is the same thing as promoting
them for oneself. Single individuals become parts of a whole which they help to
feed and from which they draw their resources.(50)
Their very realization is a constituent part of this community. This is not yet
a political community - it is the moral community of all human beings that is
immanent in every concrete community, one for which every person has the right
to be treated as "one of our own sort".(51)
It is evident here that without a principle of solidarity there could not be any
general concept of the common good, which therefore precedes that of justice.
We have regarded the golden rule as a prime principle of natural
law and as such it precedes any theory of justice, and provides this with a
general set of concepts. It will however be necessary to proceed to further
determinations, also in the light of concrete historical circumstances.
Reasonableness is the means to treat such questions in such a way as not to
break the golden rule, although it would be wrong to consider them to be already
resolved by the golden rule itself. My purpose was only to show that it is not
an empty formula and that it is indispensable for the foundation of the
principle of co-operation.
CONCLUSION
If in conclusion we now once again consider Rawls theory of
justice, we can see that it breaks the golden rule in a number of decisive ways.
First of all, Rawls believes that it is possible to grant the
role of prime principle to the principle of co-operation, even with respect to
the notion of a political agent, and this is impossible as it is clearly
subordinate to the principle of benevolence and to that of solidarity. These
principles end up by being implicitly presupposed without themselves being
thematized, thus avoiding the onus of interpretation and justification.
Secondly, Rawls believes it is possible, within the person and
among persons, to separate self-love from the co-operative attitude and from
reasonableness. In this way, however, the juxtaposition of interests prevents
the idea of justice from rising to achieve true recognition and a solidarity in
which each of us feels a debt towards everyone else.(52)
Thirdly, in Rawls thinking, there is no real idea of solidarity.
Normative equality, which is not an existential similitude, is not enough to
motivate people to co-operate among themselves and to justify the principle of
co-operation. This does not mean that the principle of co-operation cannot give
an important contribution to the evolution of natural law and to the quest for
practical truth. Respect of another persons rights is respect for truth as it
is part of a persons good not only to have beliefs that are true but also
beliefs that are not only aware but also reached in full liberty. The authentic
way of practising benevolence does not oblige one to make other peoples aims
ones own but to make it possible for them to assert themselves in a fair
society.
Fourthly, and lastly, in this way the question of pluralism is
not tackled but avoided. The elimination of the identity of the political person
put pluralism in parentheses. Rawls idea of co-operation requires the idea of
the neutralization of pluralism, while in reality the challenge today is how one
must and can co-operate in conditions of pluralism. In this sense an extremely
rich concept of common good helps one to understand and confront contemporary
pluralism much more than unduly restricting it. Is not our global and plural
society the amplest and most suitable place to seek the truth without prejudices
and preclusions?
I believe that use of the golden rule might have given Rawls
theory a more solid foundation. Certainly there are aspects of the one that are
not compatible with those of the other, especially with regard to the amplitude
of the concept of "common good". There are however also implicit and unconscious
confirmations of the perennial actuality of this prime principle of natural law.
It may be pointed out that I have not dealt with
the stability and evolution of the contents of natural law but only with the
actuality of its prime principles and the permanence of its argumentative structure.
But I am confident that these elements are much more important than fundamental
values because they affect their justification, interpretation and realization.