Justice and Law: From Ancient Greece to Modern Rights
Justice in Classical Greece
In Classical Greece, the concept of justice was heavily debated. The Sophists argued that justice was merely a convention, an agreement reached by the people of a particular state regarding attitudes to be considered just and unjust. They opposed Socrates, who believed in the existence of a natural law or moral justice. For Plato, justice was synonymous with social harmony. He envisioned a just society as one in which each class performs its proper function: the wisest should govern, the strongest should defend as guardians of the polis, and the producers should supply society’s needs.
Justice in the Middle Ages
During the Middle Ages, Christianity introduced a distinction between human justice and divine justice. St. Thomas Aquinas posited that justice involves fulfilling a natural law, which is part of God’s eternal law that orders all reality. This natural law guides creatures towards their respective ends, and for humans, it translates into positive law—the written law governing society, which should be based on natural law.
Social Contract Theories
In the 17th and 18th centuries, theories of the social contract emerged. These theories proposed that humans voluntarily agreed to leave the state of nature and establish a society where they were granted certain rights and duties. Key figures in this tradition include the classic contractarians: Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, as well as Hugo Grotius and Samuel Pufendorf.
Social and Economic Justice
The 19th century saw the rise of labor movements resulting from the Industrial Revolution, which brought about the concept of social and economic justice. This concept suggests that a just society seeks to eliminate economic and social inequalities, albeit through different approaches. Commutative justice is a legal concept that mandates that contractual relationships between two parties should be equivalent. Distributive justice asserts that there should be a fair distribution of rights, obligations, and benefits among the citizens of a state. Propertarian theories are associated with liberal thinkers like Robert Nozick, while social or solidarity theories are linked to John Rawls.
The Concept of Law
Law can be defined as a coherent, hierarchical system of rules and laws that bind and regulate the different situations and relationships between individuals within a community. The purpose of law is to regulate the behavior of individuals.
Natural Law
Defenders of natural law theory believe that all human beings intuitively know and recognize certain laws as just through the simple exercise of reason. Natural law posits that above any positive law, there is an objective or natural order embodied in natural or divine law. Natural law emphasizes legitimacy, suggesting that the legal order is part of morality. This is encapsulated in the phrase Iussum iustum quia (because it is right, it is right). Proponents believe that decisions should not only be legal but also just, making it legitimate and ethical to oppose any law that contradicts natural law. The belief in natural law implies a belief in objective and universal justice. After the French Revolution and the Declaration of the Rights of Man and of the Citizen, natural law transitioned into positive law.
Contractarian Theory of Law
Proponents of the contractarian theory of law believe that law arises from a social contract or pact where individuals renounce their natural rights to accept civil rules. This can lead to various outcomes: in Grotius and Pufendorf, it results in civil society; in Thomas Hobbes, it leads to a pact of submission to absolute power; in John Locke, it establishes civil society and majority rule; and in J. Jacques Rousseau, it results in the general will and popular sovereignty. More recently, John Rawls introduced the concept of the original position.
Positive Law
Positive law asserts that law should be examined from the perspective of established laws and pure legality. It is based on the set of laws, legal norms, and customs that are in force in a state at a particular historical moment. Legal positivism opposes the positions taken by natural law theorists and denies the existence of a natural law. For legal positivists, state rules are not based on natural laws but are products of historical evolution. Positive law is understood as law enacted by the state. A positive law is one that has been approved through legal proceedings and is in force in a state. Legal positivism asserts that there are no laws other than positive ones. The representative and promoter of the idea of positive law is Hans Kelsen.
Human Rights
Human rights are basic and essential rights that correspond to humans by virtue of their being. There are three generations of human rights:
- First generation: These correspond to individual rights. Emerging with the French Revolution in 1789, they include the basic rights of individuals, such as freedom, life, and dignity.
- Second generation: These correspond to social rights. They encompass economic, social, and cultural rights enshrined in the 1948 Declaration.
- Third generation: These are the rights of solidarity.
The Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of the United Nations in 1948 in Paris, outlines human rights considered basic. The binding nature of this declaration and the International Covenants on Human Rights form what is known as the International Bill of Human Rights.
Citizenship and Civil Disobedience
A citizen is a person who is part of a political community. Membership in this community is called citizenship, which is linked to a number of duties and rights that every citizen must respect and enforce. Citizenship can be defined as “the right and the willingness to participate in a community, through self-regulating action, peacefully and responsibly, with the aim of improving public welfare.” Responsible citizenship involves law enforcement, highlighting the value of citizenship. Respect for the rule of law means that the law is above everyone and all institutions of a state. Civil disobedience, also called passive resistance, is the refusal to obey laws or guidelines of a government without using violence. Its purpose is to challenge authority and achieve political concessions. Conscientious objection is the refusal to comply with certain legal provisions because they are contrary to a person’s ethical or religious beliefs.