A Global Concept of Justice Dream or Nightmare? Looking at Different Concepts of Justice or Righteousness Competing in Today s World

• Author: Stathis Banakas
• Position: School of Law, University of East Anglia, Norwich, England
• Pages: 1022-1041

School of Law, University of East Anglia, Norwich, England. This article is dedicated to my esteemed former teacher and personal friend, Professor Apostolos Georgiadis, a gift of honour and love.

I Introduction: What Justice, What Goals For Justice, And Justice For Whom?

Contemplating justice on a global scale in today's world can easily be seen as an almost impossible, Don Quixotic venture. Important preliminaries arise and need to be clarified:

What justice: political, cultural, religious, or socio-economic justice?

What goals can or should global justice serve? Justice as (Hobbesean) peace, justice as doing no harm,¹ justice as equality, justice as reward, justice as welfare (social justice), justice as righteousness (religious-mystical justice), justice as individual agency, utilitarianist justice supplementary to private ethics-to mention but a few.

Justice for whom: for individuals, natural persons, legal entities, corporations, communities, groups, nations, states, all sentient beings, the environment, the planet, the universe, God?²

The issue of global justice promises nothing but an enormous scope of inquiry. This modest effort to offer some reflections on this issue will limit itself to an engagement with the obvious and the urgent.

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II "What Is, Is, Therefore, Just": The Undisputed Reality Of Financial Globalization As A Challenge For Contemporary Justice Theories

"Capital globalized itself," says Santos, one of the most perceptive social scientists working on the effect of globalization.³ 4 Indeed, among the many forms and manifestations of globalization, that of the capital markets has been the most powerful in its overall effect and is driving with increasing force a global demolition of national and local frontiers. The economy is disembedded from local society, observes Santos. And he identifies the new faces of what he calls the social fascism that accompany this phenomenon: contractual, territorial (colonial) insecurity, and financial fascism.⁵ Society is being transformed into a "market society" on a global scale, and political power based on financial power results in new global forms of social exclusion. Everything is commodified on a global scale, including objects and relations that used to be personal and extra-commercium.

Santos is violently opposed to financial globalization, which he appears to think is the cause of all evils in today's world, and which, one might add, is the main driving force behind all other forms of globalization, such as movement of people and goods (including immigration), communication and media, cultural exchange and imitation, and so on. One might also add that the global market forces also lead a drive toward global legal norms to the extent that such norms are necessary for the proper enjoyment of financial gains on a global scale.⁶ Such norms are expeditiously and efficiently introduced on a global scale, with or without the consent of national governments and national legal orders that have no choice but to succumb to their jurisdiction if they do not want to remain excluded from globalized capital. They are also meant to be respected over and above any other international, Page 1023 transnational, or national legal norms, carrying the supreme sanction of exclusion from global financial resources.

If this is the reality of globalization, what is justice for? As traditional Japanese legal culture has it, "What is, is, therefore, just"!⁷ A more modern Japanese thinker seems to be firmly rooted in this tradition when he writes:

We should not take the game of market too seriously. We play the game because we want the system that allows each of us to utilize one's knowledge and ability to contribute both to oneself and others. This system requires a mechanism which communicates information concerning scarcity of different goods and resources to each one of us . . . . We have to face the market as no more than such a mechanism.8

He goes on to assert his faith in individualism and individual choices, channeled through traditional, Western-style private law creativity away from national or global politics, to contribute to a more just social change on our planet. But this rather confident approach to the reality of financial globalization and the market does not seem to be shared by many. Numerous writers have anxiously and gallantly explored all possible avenues of a "moral" response to this reality: from Kant's Cosmopolitanism and "Constitutionalism,"⁹ recently revitalized in the writings of Jrgen Habermas,¹⁰ to more contemporary theorists taking into account the multiple dimensions of the globalization process.¹¹ Numerous international symposia have been organized on the challenges of globalization for international politics and diplomacy and the law, the Louisiana Law Review's in 2007 being the first in the United States, but by no means the last!

Any attempt to discuss justice in today's world will have to be in light of the reality of financial globalization and would have to Page 1024 start by identifying the challenges that this reality presents to law and justice. I strongly believe that "pattern" theories of justice,12 and they are many, must keep their feet firmly on the ground, and not evangelize principles arbitrarily or patronizingly. This is not to endorse recent theories of so-called "Meta-ethical Particularism"13 that condemns impartial moral principles as "abstract and deracinated," and advocates that moral reasoning flows in narratives provided by the cultural community in which individuals are situated, and that the preservation and defense of such community necessitates different moral status for cultural insiders as opposed to outsiders. One of the moral theorists writing in this vain has put this "particularism" of values as follows:

[T]he question most likely to arise in the minds of the members of the political community is not, What would rational individuals choose under universalizing conditions of such-and-such a sort? But rather, What would individuals like us choose, who are situated as we are, who share a culture and are determined to go on sharing it? And this is a question that is readily transformed into, What choices have we already made in the course of our common life? What understandings do we (really) share?14

Such an approach feels intuitively right in the flood of fragmentation, de-formalization, and common information interests of globalization. However, impartial classical liberalism and neo-liberalism, from Locke and Kant to Rawls, is also intuitively suspect: As well pointed out by writers recently,¹⁵ it smacks of a particular genetic pedigree of Western political liberalism, cultivated in the abstract in the iron grip of rationalism, and mainly formulated in that distant pre-globalization age of the nineteenth century.

The relentless drive for financial globalization, which is the reality on which any discourse on law, justice, and fairness must be Page 1025 based, presupposes a principled respect of private property rights and the primacy of economic value over any other asset assessment. Globalized capital exercises relentless pressure on a global scale for expansion and unqualified protection of private property rights, as more privately owned goods increase markets' volume and turnover. We see a constant erosion on a global scale of traditionally retained (i.e., not available for private ownership or trade) objects (goods), with traditionally publicly-owned social services and so-called national assets being in the frontline of privatization/capitalization.

III Responding To The Challenge

A The Property Issue: Justice as Entitlement

Financial globalization has been supported by the perceived popularity and success of a Western neo-liberal, free-market economic and moral philosophy, best represented by the very influential writings of the American philosopher Robert Nozick.16 Inspired by the Kantian ideas of personal autonomy and responsibility, Nozick argues that welfarism, and its restrictions and claims on private wealth, violates the important principle that human beings are ends in themselves and cannot be treated as means to an end, however charitable and desirable that end can be to (the majority of) others. He also argues that personal rights are "side constraints," defining what the law should and should not do, and cannot be violated in pursuit of any social goal, without consent. Such rights include, according to Nozick, the right to legitimately acquired property. Confronting the also hugely influential views of John Rawls,¹⁷ Nozick describes Rawls's second principle of justice, the so-called "difference" principle, as a "pattern" theory of justice, and points out that: "The term 'distributive justice' is not a neutral one . . . . In a free society, diverse persons control different resources."¹⁸

Nozick is led to the conclusion that a fundamental principle of justice is entitlement to just holdings. Such entitlement for Nozick comes only from an original acquisition, exchange, or gift, and cannot be violated for the pursuit of any social goal...