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Justice Is Conflict
Stuart Hampshire

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COPYRIGHT NOTICE: Published by Princeton University Press and copyrighted, © 1999, by Princeton University Press. All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher, except for reading and browsing via the World Wide Web. Users are not permitted to mount this file on any network servers. Follow links for Class Use and other Permissions. For more information, send e-mail to permissions@press.princeton.edu

Chapter I

The Soul and the City

THIS BOOK'S title comes form Heracleitus; but in Book IV of the Republic (439e) Plato makes Socrates tell this story:

Leontius, the son of Aglaion, as he came up from the Piraeus on the outside of the northern wall, saw the executioner with some corpses lying near him. Leontius felt a strong desire to look at them, but at the same time he was disgusted and turned away. For a time he struggled with himself and covered his face, but then, overcome by his desire, forcing his eyes wide open and rushing towards the corpses--"Look for yourselves," he said, "you evil things: get your fill of the beautiful sight."

This is a familiar story of conflict and of ambivalence in the mind of an individual. Conflict, and the regulation of it, is the principal subject of this book. In the Republic Plato argued that there is a clear analogy between conflict and justice in the divided minds of individuals and conflict and justice in the class-divided city. In both cases, justice consists in a harmony of the parts or elements, a harmony imposed by reason. I shall argue that Plato is right about the existence of the analogy between the soul and the city and also right that the concept of justice is best explained by this analogy; but I shall argue that justice cannot consist of any kind of harmony or consensus either in the soul or in the city, because there never will be such a harmony, either in the soul or in the city. In order to persuade you of this, I shall have, first, to persuade you to think of reason and of rationality rather differently from Plato, and second, to persuade you to distinguish between justice and fairness in matters of substance and justice and fairness in matters of procedure: my positive conclusion.

I shall try to persuade you that fairness in procedures for resolving conflicts is the fundamental kind of fairness, and that it is acknowledged as a value in most cultures, places, and times: fairness in procedure is an invariable value, a constant in human nature. Justice and fairness in substantial matters, as in the distribution of goods or in the payment of penalties for a crime, will always vary with varying moral outlooks and with varying conceptions of the good. Because there will always be conflicts between conceptions of the good, moral conflicts, both in the soul and in the city, there is everywhere a well-recognized need for procedures of conflict resolution, which can replace brute force and domination and tyranny. This is the place of a common rationality of method that holds together both the divided and disruptive self and the divided and disruptive state. Rationality and substantial justice do not consist in a consensus and a harmony of belief in the soul and state from which all conflict has been eliminated, which is Plato's picture of the soul and of the state. On the opposing and Heracleitean picture, every soul is always the scene of conflicting tendencies and of divided aims and ambivalences, and correspondingly, our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.

Plato and Aristotle had their own motives, political as well as philosophical, for distinguishing different parts of the soul as on different levels, a hierarchy of higher and lower. They had their own motives for singling out the reasoning faculty as constituting (Aristotle,Nicomachean Ethics 1169a 2) the most authoritative and governing element in the soul. Aristotle explicitly makes the political connection here: "Just as a city, or any other systematic whole, is most properly identified with the most authoritative or governing element in it, so it is in a man." For personal fulfillment and mental stability we have to ensure that the naturally governing element in the soul does in fact govern. If we go against nature in this matter of internal governance, we shall suffer for it. There is no choice if we are to live successful lives. There is a choice in the public, external matter--political choice--and the choice is to be guided by the analogy with natural subordinations recognized in the soul. It is by analogy that the city can be said to be a happy or unhappy city in accordance with the right or wrong political choices being made, with the effect that either a harmonious or a discordant social structure comes into existence.

I suggest that, in reversing this tradition, we start at the other end of the analogy and proceed in the opposite direction: that we start with natural and universal public procedures and institutions which are to be found in all, or in almost all, cities or states. We then explain the processes attributed to the divided soul of a person as based on an analogy with the natural procedures in the city or state. The procedures necessary to any workable social order are to be seen as primary. Mental processes in the minds of individuals are to be seen as the shadows or publicly identifiable procedures that are pervasive across different cultures. Everyday speech helps here. The words that we ordinarily use to distinguish mental processes--"deliberating," "judging," "adjudicating," "reviewing," "examining," and many others--have both a public and an inner mental use. The inner mental uses are best explained through reference to the observable public activities. The relations between the public activities of deliberating and adjudicating are open to everyone's observation, and their shadows, the corresponding private mental activities, are assumed to duplicate these relations.

Almost any organized society requires an institution and also a procedure for adjudicating between conflicting moral claims advanced by individuals and by groups within a society. Typically these include claims about property and status, but also conflicts of moral ideals and beliefs, strongly held, that need to be heard and judged, particularly in societies which are not homogeneous in religion, race, custom, and culture.

Second, in any society or state, there needs to be a council or cabinet, even if it is only a council of advisers to the monarch who discuss the various policy options among which a choice has to be made. The typical political case is a choice between war and peace, after discussion, as in Homer's Iliad.

Third, societies and states are liable to suffer disasters and yet to survive: for example, a defeat in a war, or a failure of crops, or an epidemic, or riots and civil disorder. There will need to be some court of inquiry or commission to review rival causal explanations and to assign responsibility as reasonably as possible.

This is a short list of indispensable procedures and institutions that all involve the fair weighing and balancing of contrary arguments bearing on an unavoidable and disputable issue. They are all subject to the single prescription audi alteram partem ("hear the other side"). Herbert Hart drew my attention to the centrality of this phrase, defining the principle of adversary argument, when justice is to be done and seen to be done. In each case the fairness of the public procedure depends as its necessary condition upon this very general prescription's being followed.

Discussions in the inner forum of an individual mind naturally duplicate in form and structure the public adversarial discussions. "Naturally," because advocates, judges, and diplomats rehearse what they are to say before they step onto the public stage. Anyone who participates in a cabinet discussion, in a law court, in a diplomatic negotiation, acquires the habit of preparing for rebuttals by opponents. He acquires the habit of balanced adversary thinking. The public situations that I have mentioned give rise to corresponding mental processes which are modeled on the public procedures, as a shadowy movement on a ceiling is modeled on an original physical movement on the floor. Moral conflicts are part of every person's experience. In the ever-recurring cases of conflict of principles, adversary argument and then a kind of inner judicial discretion and adjudication are called for.

In private deliberation, the adversary principle of hearing both sides is imposed by the individual on himself as the principle of rationality. "Hearing" here becomes a metaphor. Most of the verbs that represent thinking are tainted with these metaphors: seeing, weighing, reviewing evidence, and many more. The very notion of a procedure, which I follow in my own mind, is in a sense a metaphorical one. "Was the proper procedure followed before the decision was made?" is a literal question, admitting a straightforward empirical answer, when it refers to the committee meeting. "In your own thinking about this, did you follow a proper procedure, reviewing the reasons on both sides, before you made your decision?" addressed to a person, is a less straightforward and a less determinate question. When it is answered, no logbook of the order of mental events is to be expected, and there is no confirmable observation of the procedure that was followed. But the idea of an individual's being unbiased, open-minded, and rational in his thinking has sense for us because we know what it is for a public procedure of discussion to be unbiased, open-minded, and rational. I imagine myself hearing two or more contrary cases presented to me, and I preside over them, allowing the evidence on both sides to be heard; then, and only then, I am to reach a conclusion. This is the process of reflection. One may claim that, whatever the subject matter, this "hearing the other side / audi alteram partem" is precisely what constitutes thinking in the narrow Cartesian, the methodical sense of thinking, which identifies thinking with the exercise of the intellect, in contrast to the exercise of imagination. With literary artistry and a sense of drama, Descartes presented the paradigm of thought as a process in the inner consciousness of the solitary thinker, sitting beside his stove, hoping to reconstitute the whole world for himself, as the artificer of his own reality.

I suggest that the Cartesian paradigm should be reversed, and that the paradigmatic setting and circumstance of intellectual thought is not the solitary meditation by the stove but the public arguments for and against some claim publicly made: the supposition is that we learn to transfer, by a kind of mimicry, the adversarial pattern of public and interpersonal life onto a silent stage called the mind. The dialogues are internalized, but they still do not lose the marks of their origin in interpersonal adversarial argument. Viewed in this way, the mind is the unseen and imagined forum into which we learn to project the visible and audible social processes that we first encounter in childhood: practices of asserting, contradicting, deciding, predicting, recalling, approving and disapproving, admiring, blaming, rejecting and accepting, and many more. A child observes the family scenes, the conflicts in which the adults around him discuss and decide, assert and contradict each other, and he soon finds no difficulty in a solitary imitation of these exchanges. Any person hears the different kinds of dialogue as regular forms of behavior and quickly recognizes both the subtle and the gross differences among the types of public dialogue occurring in typical social situations.

Rationality, adversarial thinking, public and private, is properly contrasted with imaginative thinking. Evidently there are many situations requiring careful thought in which adversary arguments are not essential. A painter or musician or poet may not weigh adversary arguments in deciding how a particular work should proceed. If one finds oneself strongly moved and excited by some stretch of the countryside, and finds it beautiful, one is not normally prepared to enter into some adversary argument about its beauty. There seems to be nothing to be gained by one's being just and fair-minded and rational in supporting such a claim, or in insisting on a justification, if someone disagrees and finds the landscape dull. The acceptability of an aesthetic claim is independent of any argumentative procedure associated with the claim, and does not normally require negotiation or arbitration.

Compare the institutions that have given sense to the traditional concept of reason and of intellect as opposed to imagination: they are, first of all, theoretical studies, the study of mathematics, and of logic; and the natural sciences; last, practical studies, the law, and the development of legal systems. The Platonic ordering of disciplines makes mathematical proof the paradigm of reasoning and of rationality. This Platonic concept of reason is not the only possible one, and for some purposes, such as understanding the nature of justice and of morality, it has been greatly misleading.

Turn it upside down. What is gained by representing the concept of rationality as having its origins in the adversary reasoning typical of legal and moral disputes and disputes about evidence, rather than in the formal deductions and proofs that are characteristic of logic and mathematics? The first advantage is that an account can be given of how a common norm of rationality develops naturally from necessities of social life; that is, from the inevitably recurrent conflicts which must be resolved if communities are to survive. On the other hand, the notion of pure reason, the eternal and governing part of the soul, is a theory without explanatory value. Second, if the paradigm of rationality is taken to be deductive inference, the norm of rationality as applied to prudential and historical reasoning, and to legal and moral reasoning, will then seem to be utterly disconnected, as indeed skeptics have always argued that they are. There then seems to be no link between the form of reasoning that issues in the necessary truths of mathematics and forms of reasoning that issue in moral judgments, legal judgments, or judgments of private or public prudence. The link is the familiar notions of rationality and of argument.

Throughout history, the concept of justice has always been linked with the concepts of rationality and of reasonableness. Many philosophers and theologians, within the natural law tradition, have attributed to the supposed faculty of pure reason the capacity to discriminate relationships that are substantially just and reasonable, and in accordance with principles of equity, from those that are not. According to this natural law tradition, reason by itself discerns that the connection between justice and the protection of property is a necessary connection, like the connection between being a three-sided plane figure and being a three angled plane figure. Yet the theorists of natural law have never ceased to hear in the background the subversive whispers of the skeptics, suggesting that there certainly have been, and probably will continue to be, social orders in which these supposed universal connections have no hold on intelligent persons' minds, and in which property rights are thought of, not as necessary and universal, but as contingent and as dependent upon specific social conditions and local circumstances.

From this ancient and still continuing philosophical conflict, one conclusion can safely be drawn: that it is useless and self-defeating to conduct the discussion in psychological terms; that is, in terms of the parts of the soul, or of powers of mind--useless, because it is always inconclusive. Each side in the argument invents a philosophy of mind, a division of the parts of the soul, that is designed to support its thesis about justice, and consequently the argument goes round and round in a circle. If the argument is removed from the shadowy mental realm into the open world of institutions and practices, as these are studied by historians and by anthropologists, a determinate answer, or at least a clarification of the dispute, becomes possible. We can begin to see both why the absolute conception of justice has often seemed indispensable and why the relativist conception of justice has often seemed unavoidable. Particular institutions, each with its specific procedures for deciding between rival conceptions of what is substantially just and fair, come and go in history. Only the one most general feature of the processes of decision is preserved as the necessary condition that qualifies a process, whatever it happens to be, to be accounted as an essentially just and fair one: that contrary claims are heard. An unjust procedure, violating this necessary condition of procedural fairness, is unjust always and everywhere and without reference to any distinct conception of the good.

In accepting any adversary procedure, the normal case is the man who from the beginning of his adult life finds himself attached to an ethnic group, a social group, a locality, perhaps a religious or moral group, and where each group is in competition with other groups for some degree of dominance in a single society. In such conditions of competition there are two routes by which a person or group may seek to gain its ends: by outright domination, involving force and the threat of force, or, alternatively, by an argumentative procedure within some institution (parliament, law court, assembly) that happens to have come into existence with its own recognized rules of procedure. The existence of such an institution for adversary argument is the second necessary condition of a just procedure.

The existence of such an institution, and the particular form of its rules and conventions of procedure, are matters of historical contingency. There is no rational necessity about the more specific rules and conventions determining the criteria for success in argument in any particular institution, except the overriding necessity that each side in the conflict should be heard putting its case.

At a less thoughtful level, and without the civility of argument, a duel fought to resolve a quarrel can be fair, in virtue of its procedures, while an ambush or mere affray makes no pretense of fairness. There is no prescribed procedure. The idea of equal opportunity for both sides, that is, the idea of procedural justice, governs the rituals of the traditional duel with swords or pistols, and of many other kinds of traditional contest and ordeals. Neither side must be allowed within the duel an unfair advantage, and the only inequality must come from the temperament and the skill of the individuals involved. A duel obviously presents only a partial analogy to adversary reasoning in a law court or parliament, but it is a very clear example of an institution for conflict resolution governed by traditional rules and rituals, and also by an ideal of fairness in procedure. To be killed in a duel, as were Pushkin and Lassalle, is different, and it has always been felt to be different, from just being killed in a pub brawl, as was Christopher Marlowe.

In the silent thought of any individual, rationality is best characterized as two-sided reflection. When the evidences to be surveyed and evaluated, the objects of reflection, are the subject's own conflicting desires and feelings, she would not expect to be reliably controlled in her final judgment by some clear and well established procedure. Our desires, sentiments, attitudes, and intentions normally compose an unstable and confused scene in our minds, with all the ambivalences and contradictions that the story of Leontius illustrates.

We do not know anything about reason as a faculty, apart from what philosophers and theologians and others have chosen to put into the concept. Parts of the soul, unlike arms and legs, are a philosophical invention. Here are some of the typical activities that can be grouped together as activities of adversary reasoning, and of the intellect as contrasted with imagination: the weighing of evidence for and against a hypothesis in a social science; the weighing of evidence in a historical or criminal investigation or in civil litigation; and the whole sphere of public prudence and policy-formation. Different skills are required in each of these activities, but they can be grouped together as reasoning in conditions of uncertainty. Consider a strongly contrasting list of natural and thoughtful human activities that we expect to find in all societies in some form or other: and they are the activities of the imagination--storytelling, poetry, music, drama, visual art, public celebrations, the description of ideal societies and ideal persons and ideal ways of life, and moral imagination. These are activities that we expect to vary vastly in form and content in different places, in different social groups, at different times in history, and in distinguishable cultures. We not only expect the diversity; we positively demand it. Their diversity, like that of the natural languages, helps to establish the identity of distinct populations and of cultures.

The first set of activities have been wrongly accorded a superior station on the ground that they distinguish humanity from the beasts in the multileveled soul. Both lists of activities distinguish humanity from the beasts. The difference is elsewhere. Activities of reason in the first list unite humanity in shared and identical pursuits and procedures. The thought required is convergent. The second list consists of activities that tend to divide humanity into distinct groups, each with their own languages, customs, rituals, arts, and moral ideas. The thought is divergent and particularized. The activities in the first list do not change their form as they are spread across frontiers. Even more strictly convergent is the reasoning in logic and mathematics, crossing all frontiers. But for social customs, moral ideals, rituals, liturgies, celebrations, music, poetry, and visual art, we do not expect universal criteria of evaluation; rather, they help to distinguish different ways of life. They also divide persons in accordance with temperament and taste: Javanese music can be enjoyed in Germany, but Javanese music is not expected to have the qualities of German music. Beethoven is enjoyed in China, but his procedures of composition, his style, are not those of Chinese music; no convergence is here to be expected or desired. Within the same population, we all have sharply different allergies and repugnances.

Conflict, social and psychological, was the great evil for Plato and Aristotle. From the stratification of classes in the city, each playing its own role, a satisfying harmony is to arise, and that harmony defines social justice. Similarly with the governance of an individual soul. Individuals cannot fall into painful inner conflict if in each of them personal ideas, desires, emotions, and habits of feeling are governed by certain knowledge of fixed norms and principles. This picture of a possible harmony under the governance of reason is carried through the Christian centuries and persists in the philosophy of the Enlightenment, and it persists in contemporary liberalism also. Whatever the contingent differences between us arising from our personal history--from our memories and imagination--the king in his castle and the peasant in his hovel are one, in their common humanity, in virtue of the overriding superiority of rational moral principles that king and peasant may both implicitly recognize.

Professor John Rawls revivified the study of political philosophy by taking one necessary step away from this traditional search for harmony. In A Theory of Justice, he declared that his rationally chosen principles of justice must be independent of conceptions of the good. But he has also acknowledged that his principles are to be rationally chosen specifically by those who live in a liberal and democratic society, where they may represent an overlapping political consensus about the principles of substantial justice. Once again, there is harmony, but harmony within the liberal stockade. Someone whose conception of good and evil is founded on a supernatural authority, which represents any tolerance of a contrary moral view as evil, will not, for example, accept the primacy of liberty. In any truly liberal society such illiberal persons are to be expected. This confinement of reasonably acceptable principles of justice to liberal and democratic societies bypasses the outstanding political problem of our time, which is the relation between two kinds of society: on the one hand, self-consciously traditional societies and governments, where priests of the church or rabbis or imams or mullahs, and other experts in the will of God, maintain a single conception of the good that determines the way of life of the society as a whole; and on the other hand, the liberal democratic societies and governments that permit, or encourage, a plurality of conceptions of the good. The severity of this confrontation was for a long time concealed by the belief in a positivist theory of modernization. The positivists believed that all societies across the globe would gradually discard their traditional attachments to supernatural forces because of the need for rational, scientific, and experimental methods of thought which a modern industrial economy involves. This is the old faith, widespread in the nineteenth century, that there must be a step-by-step convergence on liberal values, on "our values."

We now know that there is no "must" about it, and that all such general theories of human history have a predictive value near to zero. They are just diachronic versions of the Platonic and Marxist belief in a final rational harmony. It is not only possible but, on present evidence, probable that most conceptions of the good, and most ways of life, which are typical of commercial, liberal, industrialized societies will often seem altogether hateful to substantial minorities within these societies, and even more hateful to most of the populations within traditional societies elsewhere. As a liberal, I think I ought to expect to be found superficial by a large part of mankind, both at home and abroad. One needs to see that one's own way of life and habits of speech and of thought, not only seem wrong to large populations, but can be repugnant in very much the same way in which alien habits of eating, or alien sexual customs, can be repugnant.

Liberals, such as Professor Rawls and I, believe that there is no great moral significance to be attached to the accident of our place of birth and of our inheritance. Our moral opponents, whom liberals sometimes call fanatics, see destiny, intention, or design in their inheritance, and from their ancestry they infer a very specific mission, a specific set of duties, and a clear plan for their lives. Perhaps this most fundamental of all oppositions in politics comes from contrasting attitudes to time, historical time. When, famously, "Remember 1689" is chalked on a wall in Belfast by a Roman Catholic calling to mind William III's Protestant Settlements, it would most certainly be useless to respond: "Be fair and reasonable: forget the injustices of the past, as you see them, because the past cannot now be repaired; it is more fair and reasonable to start from now and to try to build a peaceful society for the future." The response comes back: "You are asking us to forget who we are. Like everyone else, we define ourselves by what we reject. We should cease to exist as a community if we thought only of the future and of what you call reasonableness. That would be disintegration, the loss of integrity, both as individuals and as a community." Self-definition by opposition is the moral equivalent of the old logical principle "Omnis determinatio est negatio."

Procedures of conflict resolution within any state are always being criticized and are always changing and are never as fair and as unbiased as they ideally might be. But if they are well known and are a part of a continuous history, they are acceptable for reasons that Hume explained in his essay "The Ideal Commonwealth." The institutions and their rituals hold society together, insofar as they are successful and well established in the resolution of moral and political conflicts according to particular local and national conventions: "this is our peculiar form of governance and we cling to it."

This is justice and fairness in procedures: whether in duels, sports, games, law courts, parliaments, in all kinds of arguments and in adversary processes in which one side wins and another side loses, either fairly or unfairly. That is how politics and social life for the most part go forward, at best in controlled and recognized conflicts, sometimes enjoyably, sometimes painfully.

Looking back, we can criticize, from a moral point of view, historical institutions such as slavery in the American South, the subordination of women in Victorian England, and the caste system in India as substantially unjust, while explaining and defending the liberal conception of substantial justice, which has emerged gradually in Europe and America as the outcome of past conflicts. We may also criticize the distribution of wealth and of income in America or Britain today as grossly and substantially unjust, also in the light of a particular conception of distributive justice, which is part of a whole moral outlook and of a particular conception of the good. In this case, we will expect opposition from conservatives who have another conception of justice that they can defend, and that is part of their conception of the good, stressing property rights and the autonomy of individuals.

The issue of distributive justice so far remains abstract, theoretical, and indeterminate. When there is an actual political confrontation with economic conservatives on one side and economic reformers on the liberal side, the ensuing argument assumes the existence of some of the institutions and customs prevailing at that time and place. The participants in the conflict are no longer considering the abstract question of whether the present actual distribution of wealth can be considered just or unjust, taken in isolation from the other institutions of the time and place, and in an ideal and imaginary social world, started from scratch: the Shelleyan stance. I am assuming that each disputant is making his own case in the real world of necessary politics, following the customary and rule-governed procedures of public argument and decision making appropriate to such cases in this particular society. The specific forms of argument and negotiation, and the arenas in which the conflicts are to be fought out, are often themselves subjects of dispute as much as the substantial conceptions of justice involved. Like substantial conceptions of justice, the vehicles of dispute are expected to change as the untidy upshot of regular political conflicts. The second order and procedural questions have to be made the subject of political conflict and negotiation. The framework of such a political dispute, if it is handled with justice and fairness, is still the universal principle of adversary argument.

Whatever a person's moral outlook and conception of the good, and whatever his beliefs about issues of substantial justice, he knows that he will sometimes collide with others who make contrary judgments. Unless he is a hermit, he will find himself to some extent constrained by certain nearly universal habits of argumentative behavior that can be collectively called the habit of playing the game of argument according to the locally appropriate rules. In childhood, he learned to involve himself in the institutionalized games and contests that his coevals played, accepting in the process the historically contingent rules which defined these games. When he grew older, he naturally realized that, if he had been born elsewhere and in another century, he would have been involved in different institutions, different contests. But the nature of the involvement, and of the innate disposition to join in, would have been the same.

Because of this alternation between necessity and contingency, philosophical theory has always traced an uncertain and wavering path between ethical relativism on the one hand and ethical absolutism on the other. In times and places where there was slavery, there were rules and conventions governing the fair and just treatment of slaves. In some of these places and at some of these times, there were those who thought that these rules and conventions were wholly inadequate from the standpoint of substantial justice in the treatment of human beings, and who came finally to denounce the whole institution of slavery as always in substance unjust. Similarly, I can remember from my childhood in the 1920s that domestic servants in England were at that time helpless if, after a quarrel, their employers refused to give them a reference. They were doomed to unemployment. Most people now would probably consider this dependence and helplessness to be grossly unjust, but ordinary opinion at the time did not recognize the injustice.

In my time class conflict, stirred up by a self-conscious labor movement, has led to new ideas of substantial justice. The imaginative and radical critics of established conceptions of substantial justice repeatedly widen the debate and open up cases of injustice that had hitherto been beyond the range of discussion. So in the past with criticism of unregulated factory labor, of inequality between the sexes, of limited voting rights, of unequal access to health care, of unequal access to education, unequal access to legal aid. Moral imagination engenders new conflicts with new conceptions of the good, when it coincides with some social unrest, which is malleable and can be directed.

All modern societies are, to a greater or lesser degree, morally mixed, with rival conceptions of justice, conservative and radical, flaring into open conflict and needing arbitration. In the extreme case obviously the conflicts break through all procedural restraints into violence. No state will realize a perfect fairness in the representation of the conflicting moral outlooks within it. A continuing approximation to contemporary ideals of fairness in resolving conflicts, and new institutions that tend to redress the more blatant inequalities, are the best that can be expected. Procedural justice tends of its nature to be imperfect and not ideal, being the untidy outcome of past political compromises. What emerges from a fair political contest will often be described by those who are intent on a specific form of substantial justice as "a shabby compromise."

For the individual also, as for society, compromise, shabby or smart, is certainly the normal, and often the most desirable, condition of the soul for a creature whose desires and emotions are usually ambivalent and always in conflict with each other. A smart compromise is one where the tension between contrary forces and impulses, pulling against each other, is perceptible and vivid, and both forces and impulses have been kept at full strength: with the tension of the Heracleitean bow. An example would be a singer's effort to hold together in her singing complete technical control with complete spontaneity of expression. This unresolved tension of opposites is felt in excellent musical performances and in great works of art and literature. We do not normally live like this, with sustained and undiminished tension, whether as individuals or as communities. We are not masterpieces in our lives, and the lives of communities are not master classes. We look for some relaxation of tension, but, until death, we do not expect the neat disappearance of conflict and of tension, whether in the soul or in society. As individuals, our lives will turn out in retrospect to be a rough and running compromise between contrary ambitions, and the institutions that survive in the state have usually been cobbled together in the settlement of some long past conflicts, probably now forgotten, together with the moral indignation of the time.

Neither in a social order, nor in the experience of an individual, is a state of conflict the sign of a vice, or a defect, or a malfunctioning. It is not a deviation from the normal state of a city or of a nation, and it is not a deviation from the normal course of a person's experience. To follow through the ethical implications of these propositions about the normality of conflict, these Heracleitean truths, a kind of moral conversion is needed, a new way of looking at all the virtues, including the virtue of justice. We need to turn around the mirror of theory, so that we see ourselves both as we are and as we have been.

Several contemporary moral philosophers have argued that there will always be a plurality of different and incompatible conceptions of the good, and that there cannot be a single comprehensive and consistent theory of human virtue: for instance, Isaiah Berlin made this point in an essay on Machiavelli, who had insisted on the incompatibility of Christian innocence with political success and security. But my slogan here, "all determination is negation," is intended to present a stronger thesis: the superior power of the negative. Most influential conceptions of the good have defined themselves as rejections of their rivals: for instance, some of the ideals of monasticism were a rejection of the splendors and hierarchies of the Church, and this rejection was part of the original sense and purpose of the monastic ideal. Some forms of fundamentalism, both Christian and others, define themselves as a principled rejection of secular, liberal, and permissive moralities. Fundamentalism is the negation of any deviance in moral opinion, and of the very notion of opinion in ethics.

The essence of a liberal morality is the rejection of any final and exclusive authority, natural or supernatural, and of the accompanying compulsion and censorship. In this context, freedom itself is felt, and is cherished, as a negative notion: no walls of dogma, no unquestionable rules from priests and politicians; the future is to be an open field for discovery. Openness is a negative concept, appropriately therefore an indeterminate concept. The liberal's adversary is disgusted, or made nervous, by this negativity, by the openness and the emptiness, by the looseness of undirected living. The ensuing conflict is stark and often bitter. Only in communities that flourished before modern communications existed could citizens possibly have been ignorant of systems of reflective moral belief that were odious in their eyes. Now they might reasonably, recognizing the confrontation, come together in ranking political activities, the skillful management of conflicts, as among the highest of human skills. On the other hand, it does not follow from the fact that procedural justice is defined by a universal principle, a principle of rationality, that it must override all other moral considerations in everybody's mind. Men and women generally recognize that there may be some exceptional circumstances in which they will hold that considerations of procedural justice and of rationality ought to be overridden in order that some other essential value, which is dominant in their morality, may be protected, such as the avoidance of widespread misery or the preservation of life.

There normally is in any modern society a chaos of opinions and of moral attitudes. A reasonable person knows that there is this chaos, and those with strong opinions, or with fanatical hearts, deplore the chaos and hope for a consensus: usually for a consensus in which their own opinions and attitudes are dominant. A socialist by conviction, I consider poverty alongside great wealth a great and unnecessary evil and a substantial injustice, and I expect a continuing political fight with those whose conception of the good and whose idea of fairness is an incompatible one. This is the proper domain of politics. There will be, on one side, the well-trained rhetoric of conservative thinking, and on the other the rhetoric of radical reform and redistribution.

In many essential respects the metaethical theory I have been assuming is close to Hume's: that opinions about substantial justice and the other virtues arise from, and are explained by, natural and widespread human sentiments greatly modified by very variable customs and social histories. But in the classical tradition, Hume still believed that humanity has a tendency toward a consensus in its moral sentiments. After he has dismissed the claims of reason to guarantee general agreement in morality, he reintroduced the goal of harmony and consensus through the idea of a constant human nature governing our sentiments and sympathies. I have been arguing that the diversity and divisiveness of languages and of cultures and of local loyalties is not a superficial but an essential and deep feature of human nature--both unavoidable and desirable--and rooted in our divergent imaginations and memories. More fundamentally, our stronger sentiments are exclusive and immediately lead to competition and conflict, because our memories, and with them our imagination, are focused upon particular persons, particular inherited languages, particular places, particular social groups, particular rituals and religions, and particular tones of voice; and hence our stronger loyalties are similarly focused. We want to serve and to reinforce the particular institutions that protect us, and to extend their power and influence at the expense of their rivals.

This philosophy of conflict can be pressed further in a metaphysical vein. The individuality of any active thing depends upon its power to resist the invasion and dominance of the active things around it. This is the metaphysical principle that Spinoza thought must apply to all things within the natural order and therefore to all persons and identifiable groups in the civil order also. Men and women are naturally driven to resist any external force that tends to repress their typical activities or to limit their freedom. This is true of individuals, families, social classes, religious groups, ethnic groups, nations. This is the common order of nature. They are all, these different units, struggling, wittingly or unwittingly, to preserve their individual character and their distinctive qualities against the encroachment and absorption of other self-assertive things in their environment. Given this picture of the natural order, diversity, rather than conformity, is not a moral prescription, as Mill thought, one option among others. It is a natural necessity for each distinct entity to try to preserve its distinctiveness for as long as it can, and for this reason conflicts are at all times to be expected in the history of individuals, of social groups, and of nations, as their paths intersect. There is no end to conflict within and around the civil order.

This is a metaphysical vision, a speculation. Spinoza's picture is of unavoidable conflicts of interest in the pursuit of survival. But it can apply also to conflicts between conceptions of the good with which people are passionately identified. The evidences of personal experience and of political history are strong in support of this picture. Every person recognizes the exclusiveness of many of his emotions, which make him turn his back on other emotions and interests that he knows also have a claim on him. The normal state of a person with normally strong feelings is like Leontius's state of mind, with which I began.

In the context of international affairs, it is now evident that the human race is unlikely to survive for very long unless reasonably fair procedures develop and become accepted for negotiations and arbitrations in the settling of international conflicts threatening war. My argument is relevant, first, in its suggestion that bringing into existence institutions and recognized procedures should have priority over declarations of universal principles; second, in its suggestion that institutions earn respect mainly from their customary use and from their gradually acquired familiarity. There is a chance that a kind of case law will step-by-step develop within disarmament negotiations and through them a rough sense of fairness in the adjudication of conflicts, always given equality of access: not perfect fairness, but the kind of imperfect fairness that may emerge from procedures which are themselves compromises, from the relics of history. Nothing more is reasonably to be expected.

Rationality, prudential and moral, as a common human possession or potentiality, is most plausibly identified, as argument and counterargument, with the just and fair weighing of conflicts of evidence, and of conflicts of desires. Every individual person has used procedures for resolving contrary pulls and contrary impulses: political conflicts and their resolution are strictly analogous.

In the political arena I will defend those institutions which contribute to the realization of my conception of the good, and which protect my conception of substantial justice from its enemies. My requirement from my moral enemies is the requirement that I impose upon myself: that contrary views of what is just and fair are allowed equal hearing, equal access, in the city or state, and that no one conception of substantial justice in society is imposed by domination and by the threat of force. What do I do when a rival conception of the good leaves no place for procedural justice, and when it will not recognize fairness in the settlement of disputes as a virtue? This is the bind in which liberal and nonauthoritarian morality is apt to find itself: if a particular conception of the good does not already include the virtue of respect for fairness in procedure, and for rationality in this procedural sense, where does this independent and indispensable virtue find its authority and justification?

The authority and the justification are to be found in the structure of practical reason itself. This is my thesis: it is a kind of transcendental argument. Everyone uses the balancing of pros and cons in his own mind in the pursuit of his own conception of the good, as well as in common prudence, in pursuit of his own interests.

Our various conceptions of the good are formed, in the last resort and at the end of all tests for consistency, by our perceptions and by our imagination, which in turn determine our feelings. In the Christian era, we have confused ourselves by allowing our imaginations to gallop along two contrary paths. The first is the path of the monotheists, one God, creator, and arbiter. Obviously if one God, only one morality--His law and the falsity of moral pluralism therefore. The other is the path trodden by Herodotus: the historical consciousness, glorying in the variety of ways of life and in the imagination of them. This glory was associated with the pagan polytheism which could respect many tutelary gods, each in his or her particular place. Sacredness and reverence were diffused, and the contrast between the Athenians and Spartans, in their ideals of humanity, was a glory to both of them.

Looking back to Herodotus and to Plato, and to the slave economies of the ancient world, one must not be so carried away by the moral differences between now and then as to forget the greater identities. There remain the unchanged horrors of human life, the savage and obvious evils, which scarcely vary from culture to culture or from age to age: massacre, starvation, imprisonment, torture, death and mutilation in war, tyranny and humiliation--in fact, the evening and the morning news. Whatever the divergences in conceptions of the good, these primary evils stay constant and undeniable as evils to be at all costs averted, or almost all costs. One matching constant on the positive side is common everyday rationality, the power of argument--a weak protection, you may say, and that is why I am a pessimist.

The ground for hope is the thought that the sphere of political action may be gradually extended as more of the great evils, such as starvation and poverty, are moved from the column headed "natural misfortunes" into the column headed "political failures." This has regularly happened in the past, as with chattel slavery and the subordination of women, and it can happen again with poverty and famine. The perpetual conflict between conservative thinking, in all its varieties, and the ambitions of reformers, socialists, and liberals comes, in the last analysis, from this single source: ought we to raise continually our consciousness of political possibilities, or ought we to accept the limits of political agency that, as it happens, our history has so far left in place? In any period the rhetoric of freedom displays pride in human agency, even if it is only the agency of a Renaissance prince: the opposing rhetoric of conservatism displays pride in the steadiness and continuity of social practices and of old forms of life. In any particular conflict of values, this confrontation is liable to be tinged with real hostility and depth of feeling, because incompatible conceptions of the good are at stake. Incompatible conceptions of evil would be a more realistic phrase for incompatible moral values, because a moral outlook or theory is usually best defined by its exclusions and prohibitions.

Alongside conflicting moral traditions within a single society there can at the same time be a shared political culture within shared institutions. Those who operate within the various institutions in pursuit of their own particular ends naturally come to share certain professional attitudes and customs, and a common professional morality. The word "community" is much used in political philosophy. I think the true communities in modern life are to be found in professions and shared pursuits, in the communities of people who work together. Most lawyers, most actors, most soldiers and sailors, most athletes, most doctors, and most diplomats feel a certain solidarity in the face of outsiders, and, in spite of other differences, they share fragments of a common ethic in their working life, and a kind of moral complicity. The same is true of politicians in a democratic, or halfway democratic, state, which will generate a cadre of professional politicians who, through all their hostilities, recognize their similarities of habit. It is entirely normal that these moral crosscurrents should be strongly felt: one may dislike a class of persons for their seeming indifference to social justice and to ordinary fairness, as one conceives them, and at the same time share with them a common political culture and a respect for the procedures that will elaborately manage these hostilities. Human beings are not consistent in their emotions, in their alliances and enmities, in accordance with some simple model of consistency. This is the positive side of ambivalences and of ambiguities of feeling.

Engagement in contests of all kinds comes naturally to us and is a large part of the stuff of everyday experience. I anticipate the comment that I am representing procedural justice as only the English notion of fair play, with politics as a form of game. This comment is unfair and unhistorical. The idea of a fair contest goes far back in time and has multiple roots in pre-Christian ages and more particularly in classical pagan cultures. We have to rid ourselves of a too streamlined model of the human mind and of its inbuilt contrarieties of feeling. Respect for a process can, as a matter of habit, coexist with detestation of the outcome of the process, and this particularly in democracies.

My argument about the two kinds of justice is supposed to be entirely general, with ballot-box democracy one kind of government among others. Democracy has usually been advocated as the form of government that will ensure the most complete and fair representation of all citizens of the state, as far as this is possible. The implication is that the more democratic the state is in this sense the better, because it is a good thing that the most popular policy, the most strongly supported, should prevail. This is a substantial moral claim, perhaps to be further defended by some specific theory of freedom or of natural rights. But I see no reason myself to accept this claim. When a majority, following a natural tendency, advocates wrong policies--perhaps in the punishment of crime, in treatment of ethnic minorities, in immigration policy, in foreign policy, and elsewhere--the popularity of the policies cannot for me, for my conception of the good, mitigate the errors and the evil. Rather, the value of a democratic constitution lies in the defense of minorities, not of majorities. One needs to ensure, for the sake of justice, that the minorities are properly heard, and that they play their necessary part in the process. I and my political allies will often be on the losing side. If in a democracy we happen to have the power to frustrate the justly established will of the majority, it would be evidently unfair and unjust of us to do so, unless we are convinced that the policy chosen is so overwhelmingly evil and destructive as to override the claims of procedural justice. Otherwise we will sadly follow the democratic rules, expecting our adversaries to have an equally strong feeling for rationality and just procedures when we happen to win and they happen to lose.

Conflict is perpetual: why then should we be deceived?

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File created: 8/7/2007

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