2.2 - Bodei, Remo - Remota Justitia. Preliminary Considerations For A Resumption of The Debate of Ethics and Politics (En)

RemotaJustitia:PreliminaryConsiderationsforaResumptionofthe DebateofEthicsandPolitics
RemotaJustitia:PreliminaryConsiderationsforaResumptionoftheDebateof EthicsandPolitics
byRemoBodei

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Source: PRAXISInternational(PRAXISInternational),issue:2/1986,pages:124147,onwww.ceeol.com.
REMOTA JUSTITIA: PRELIMINARY CONSIDERATIONS FOR A RESUMPTION OF THE DEBATE OF ETHICS AND POLITICS*
Remo Bodei
I. A retrospective view (1) In the English-speaking world, talk about ethics is recognized to be a hazardous business.1 In Continental culture it may even look funny. Just by mentioning the word ethics you may cause allergic reactions.2 Such a word, along with its companion morals, often recalls useless sermons, endless and pointless quarrels, repression of instinctual drives, senile complaints concerning the iniquity of present days. This rejection may reach the point where it provokes the symptoms of physical repulsion. Then morals may be associated with some out-of-date taste, with the viscosity and density of liquids from which the best has already evaporated, and only the too fat and too sugary residues are left. It may recall sticky rosolios or, as with Musil, greasy broths: Nowadays one cannot repel sometimes the impression that concepts and rules of moral life are only overboiled parables, over which an intolerably greasy smell of humanity wavers.3 The most benevolent may think perhaps of morals as some kind of parasitic tree, of a creeper that needs to cling to the trunks of politics, law and custom, in order to survive and to grow. Without the support of the realities it criticizes and fights, it would immediately collapse. Others think that it is not even a real problem, as far as, on the one hand, idle talk falls silent when faced with the hard rebuttals of history, and on the other, everybody knows, or thinks he knows, what is good or bad for him within the framework of existing legal and customary rules. The end of morals then is announced and boosted. Other devices, more effective and flexible than moral rules, are supposed to regulate the conduct of individuals and groups. Social control is obtained through the more sophisticated means provided by mass-media and by the new ways of ritualization of individual and collective behaviour that channels aggressive and cooperative drives,4 as well as through the powerful techniques and rhetorics of discussion and persuasion, of punishment and incitement. Any rigid code of conduct becomes a hindrance. Moral conscience, which appeared once upon a time to be the sanctuary of freedom and dignity of the individual, the stronghold of good will and of resistance to whim and oppression, seems to be the resonance-box of authority and of external commands.5 Or it seems rather to be, as suggested by Nietzsche, the voice of the instinct of the herd in the individual, an imaginary place where only livid resentment is able to live.
* translation by Sergio Cremaschi revised by Remo Bodei.
Vol 6 No 2 A Philsophical Journal July 1986 redigitized by Central and Eastern European Online Library - www.ceeol.com
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Such widespread reactions should hardly amaze. We are to some extent the heirs of converging traditions that have been over centuries describing morals as powerless, or unreliable, or hypocritical. This description very often echoes vanished hopes and disappointed expectations. Modern civilization was born by hiving off politics and law from ethics and by constituting them into self-governing regions. Hasnt modern civilisation divided the unitary Aristotelian substance, i.e. the forms of the good life into parts? Hasnt Machiavelli severed politics from the wider framework of the good life and stated that se gli uomini fussino tutti buoni his teachings would not be good at all? So, modern politics developed occupying territories that previously belonged to ethics as well, and pushing ethics into more and more inhospitable and desert areas, where its voice could hardly be heard. Men are wicked, and they are not able to want and to do what is good without coercion and fear of this worlds punishments. The logic of individual action is not able to allow the survival of large human groups. On the contrary, it leads to unintended results: goodness and loyalty of a prince are dangerous to the commonwealth. Where conflict rules, carrying along violence and cunning, you cannot trust morals. The borderline between private and public space needs to be drawn as sharply as possible because of the two different and even opposite systems of rules which are accepted on the two sides. Politics has reasons unknown to the reasons of morals. Nevertheless, the attitude that politics has to morals swings between bad consciousness and forced acknowledgement. The prince needs to show moral qualities, because men in general judge more through the eyes than through the hands; because everybody can see, and only few can touch. Everybody sees how you appear, while few feel what you are; and those few do not dare to face the opinion of the many who have the majesty of the state to defend them ... because the mob can always be conquered by appearances; and in the world there is nothing but the mob; and the few cannot find room in the world when the most have a place where to lean on.6 In a manneristic, and later on, in a baroque context, politics appears to be theater, to be honest dissimulation, a craft whose secrets should not be revealed to the mob, for which the rules of appearance hold. Viewed from the standpoint of traditional virtues, or from below, political action appears to be hypocrisy; while viewed from the standpoint of the majesty of the state or from above, political action amounts to the attempt of the individual to get rid of the past, of his occasional psychological characteristics, in order to be able to play a collective role, following a different logic. As a consequence, the prince is entitled to do things that the individual citizen is not allowed to. Morals fall into disrepute as the prerogatives of the state grow wider and stronger. Facing political dissimulation, and arbitrary absolute power, moral conscience is encouraged to present itself as the ground of a not officially acknowledged truth, of a justice dependent not on the State but rather on nature or reason, related not to the will of the individual, but rather to the consent of everybody. Classical Natural Law philosophy opposes the social contract, that is, a political market eventually open to everybody, where law and allegiance are traded off, to monopolization of politics by the sovereign, or to the claim of an individual of having the right to decide what is true and what is good. In the social contract,
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the subjects express their will not to grant allegiance because of passive trustfulness or because of fear, their will not to give up all their rights, not to entrust power to anybody once for all. Authority does not spring any longer from a hidden source, that is from God, and sovereigns are not any longer its natural and sole holders. It stems rather from the people and it may be visibly founded, negotiated, legitimized. The social contract is based on an ideal of commutative justice and of distributive justice: political exchange needs not only to be fair (to rights that are given up, should correspond proportional benefits, like protection and order), but benefits and costs of social cooperation should be divided in a way eventually acceptable to all the contracting parties. The concept of alienation is central in this context, as it provides a bridge between the individual and the State, between ethics and politics, which has been acknowledged for a long time. It has been connected from the very beginning with the idea of property, and represents even the other side of this idea.7 I can alienate only what belongs to me, and first of all myself and my rights, of which I am the owner. The problem arises: why and under what conditions should I give up my natural rights? that is, what are the benefits of this exchange, and what are its costs? As in every private contract, there is some kind of calculation of what is given and of what is received. Natural Law philosophers are divided on the point of the possibility of exchanging everything. On the one hand there are those who, even if with different aims, understand that everything is negotiable (Hobbes and Rousseau); on the other there are those who establish some limit to exchange, who hold that there are unalienable natural rights, which are not included within the negotiable amount of goods. Pufendorf, Locke, Thomasius, Kant exemplify, even if with some differences, such a standpoint. This distinction leads to further implications: the first group developed political theories that stress the function of the State or of other kinds of collective will, while the second group developed theories that rather defend individual rights. But in the contract, the property of ourselves implies also the loss of ourselves as supposedly natural beings, and the formation of a new identity that is acquired in modern States. The real pointbehind the fictions of Natural Law philosophyis a negotiation of the new role of the individuals within the political space, a delimitation and regulation of two different logics that are symbolically dependent, the one on ethics, and the other on politics. Alienation becomes the legitimising link between the citizen and the State, the waiver of the old state of nature (that is the reverse of the new order) and the acknowledgement of the constraints implied by the political situation. But it is first of all a compromise between the claims of modern politics and the claims of ethics, that are expressed however in a legal form, as unalienable natural rights. This kind of Natural Law becomes the stronghold of morals, of individuals, of private parties, against the all-embracing claims of the absolute State. In such a way ethics grants autonomy to politics, but it delimits its own space, that is a free trade area under everybodys jurisdiction; politics agrees to respect this area, even if it reserves the tacit right to make raids into this area in emergencies. How difficult and unstable this agreement was, is shown
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by almost two centuries of European history. In a conscious or in an unconscious way, the ethical claims wear away the foundations of absolutistic States, endanger their pathos and their power of attraction; on the other hand, the hard necessities of politics push towards a restriction of individual rights, and to the subdivision of universal principles into a complex casuistry. Two powers, which orginated from an armistice, with approximate boundaries, from time to time bleed each other in silent wars with wearing out strategies. Both undergo a crisis, originated by a deprivation of energies, a transformation of both into a caricature of themselves, into a half that is unable to find again the other half, and that would be unable to make something valuable out of the sum of two defective things. Politics, in that age of crisis that is the 18th century, presents itself as empty lawfulness, expression of an authority that is not any more legitimized by consent or by custom (and this is the source of stress being put on the spirit of laws), while ethics presents itself as empty morality (in the sense of Hegels Moralitt, as contrasted with the living ethic, with Sittlichkeit), as a collection of rules for private use, a ground for beautiful souls or for hopeless rebellions, like the one of Karl Moor in Schillers The Highwaymen. The State, being devoid of a life of its own, being reduced to a container of force, is able to enforce only external respect of laws (that become in such a way merely positive laws), to win obedience to them through a violence that is greater and less justified than the laws that are not spontaneously obeyed; the individual conscience constitutes itself into a court of the world it delegitimizes institutions, even if it pays lip-service to them; it creates its own laws and presents to transform the maxim of individual actions into a universal legislation through a purely logical procedure; it claims to judge (from its own vantage point that has been justified by universal reason) the consistency of political institutions and even of history. As a last resort, when it is not any longer able to grasp the complexity of the ongoing processes in terms of its Gesinnungsethik, it may state with embittered wisdom: fiat justitia et pereat mundus! Objective hypocrisy, which seemed to be peculiar to politics, unavowedly worms its way into morals as well, and the suspicion is raised that, in a wicked world, good rules may produce bad effects, that they do not contribute to improvement of this world and they encourage detachment from it. One follows such rules with a split conscience or with the sad and catastrophic pride of Samson. The problem at this stage is the following: how to revive politics and how to make ethics more concrete? How to come out of this deadlock, of a legislation and politics reduced to a mere faade, to appearance, and of a morals that substitutes in the inner realm of conscience the lacking legitimacy of authorities and institutions. A few solutions have marked our tradition, and they are still accepted in several versions. Firstly, there is the solution of Rousseau, later revived by the Jacobins, according to which those who want to make a separate approach to politics and to morals, will never be able to grasp anything of the two subjects.8 That means also that the realm of interest and the realm of ethics should not come into collision with the general will: what is required is to act so that justice and utility are not divided.9
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The Jacobin political project rests on the possibility of bringing together again politics and morals, of revising the border between public and private space.10 The bankruptcy of this project will later be justified by the moralistic abstractedness of the immortal principles of 1789, that is, by the perverse effects produced by the lack of separation of politics from morals, and by the will to bring into reality the ideals of freedom, equality and brotherhood at any price. That is: try to bring justice into reality and the world will perish. The French Revolution is thus presented as a historical proof of the undesirability of the highest ethical values when somebody wants to embody them into institutions. It is better to leave them on their high pedestals; it is better not to let heaven come down to earth; it is better, like in Dostoyevskys legend of the Great Inquisitor, not to delude men with such divine promises, because they, these powerless rebels, will say: Give us food, for those who promised fire from the heavens did not give it to us, and they will ask not for freedom, equality and brotherhood, but for miracle, mystery, and authority. If some want to reconcile the highest values with each other, or to enforce them on a wider scale, that is, to politicize them, they will destroy each other and will destroy the world too. In Kants terms: a human society that is organised in such institutions as to make also the devils breed moral, would beprecisely because of thatdiabolic. The necessary conclusion is that the Best is the enemy of the Good and that the values of the absolute State, of the ancien regime should be revived against revolutionary moralism in politics and against utopias of a perfect society. One of the solutions to this problem, that has marked Continental culture, has been Hegels solution (which in Italy has been revived by Spaventa, De Sanctis, Croce, and partly by Gramsci). It can be summarized as follows: it denies the identification of politics with Moralitt, but it considers the State to be the highest form of ethic, of Sittlichkeit, the fullest expression of the ethical powers that bind men into a community. The ethical state does not pretendas it used to do in Rousseaufully to reconcile interest or utility with justice. It is aware of the conflicts (some of which will be probably insoluble for a long time) by which society is torn apart, but it is confident that these conflicts may not be allowed to become disruptive only by means of an extension of the functions of the State itself and of its entrenchment in rationality and consensus (Gesinnung) of citizens. The opposition between legality and morality may be overcome, and the delegitimizing power of morality may be weakened, if the state is able to absorb into its action and its laws such an amount of rationality and consensus as to be able to overcome some major conflicts and even to transform them into springs of that development. The State becomes again ethical, in the classical sense, that is the highest form of the good life, but it does not escape the destiny of division that is typical of modernity, and so it keeps both law and morality as its premises. It does not stem any more from the social contract (that is, to Hegels mind, only an element of private law unduly extended to the public sphere) and it is in this sense absolute. Its authority is not negotiated with citizens, as its very existence is a preliminary condition to the autonomy of the individuals and of civil society. It is however limited not only by other States, or by its being submerged into the ocean of
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world-history, but also by Absolute Spirit. Beyond the State, there are realms of Art, Religion and Philosophy, where modern man is able to enjoy a higher and fuller satisfaction than within the domain of the State. As a consequence, from the viewpoint of Absolute Spirit, the State has only a limited weight. This Spirit will be misunderstood by later Hegelianism, that will often include within the State the forms of Art, Religion and Philosophy, or will rather build a system in balance of distinti, in which there is reciprocal autonomy between politics/economics and ethics, but where the State is down-graded to volition of the particular, while ethics is again separated from institutions, becoming the volition of the universal. Thus with Gentile, the ethical state is so absolute again, superiorem non recognoscens, the highest criterion of the individual and collective conduct; with Croce instead, who cares more for what could be called, in Gramscis words, a distinguished civil society, the State is just one among several factors that contribute to the equilibrium of the socio-historical framework. (2) It is perhaps convenient to start to look at one aspect of the very Hegelian despisal of moralism (the subjective Moralitt of good intentions and of virtue that sets itself against the course of the world) shared by Marx, that is less evident and that was undoubtedly overlooked by Marx. It is Marxs valuation of Sittlichkeit, as custom and as patterns of action embodied into institutions. To the Machiavelli of the proletariat, morals appeared to be some kind of excuse, a withdrawal from organized collective struggle, a social form of hypocrisy. He vehemently rejected the Soll-Stze, that is, statements expressing some moral duty,11 and he stated that people need not be taught what they ought to do (sollen), but need rather to be made conscious of what they actually do and want.12 As a consequence, Communists do not stand for selfishness against altruism, not for altruism against selfishness:
Sie stellen nicht die moralische Forderung an die Menschen: Liebet Euch untereinander, sind keine Egoisten pp.; Die Kommunisten predigen berhaupt keine Moral (. . .) sie wissen im Gegenteil sehr gut, dass der Egoismus ebenso wie die Aufopferung eine unter bestimmten Verhltnissen notwendige Form der Durchsetzung der Individuen ist.13
Accordingly, he does not accept the Jacobin proposal too, of transforming the Bourgeois into a Citoyen, or of making collectivistic morals prevail on individualistic morals. Passive self-denial should not be expected from individuals. However, the young Marx had felt as a categorical imperative the one of alle Verhltnisse umzuwerfen, in denen der Mensch ein erniedrigtes, ein geknechtetes, ein verlassenes, ein verchtliches Wesen ist.14 Has this stand been later abandoned? Is it legitimate to state that socialism, even if scientific, can go without, if not a morality, at least an ethic? Is it not legitimate to take Capital also as a Treatise on Commutative Justice, that starts from the unfair exchange between the labor-force and wages in order to establish the conditions of a fair exchange, in which the accumulated surplus-value does not disappear but is used rather for social purposes? If
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exploitation were not also ethically disgusting, what would rule out preference given to Sade or Malthus rather than to Marx? It is clear enough that it is not only indignation or suffering from injustice that encourages the overthrow of Capitalism. Aber welcher berwunden / Klaget ber Unrecht nicht?, that is, but what is vanquished does not complain of injustice?, it is said in Herders Cid 15. If the struggle against an economic order that hinders the development of human capabilities was only the cry of the oppressed, Marx would really be a reincarnation of the Jewish Prophets, as such interpreters as Lwith pretend. But he meant rather to bind strictly the abolition of exploitation with the this-worldly realm of interests, and the establishment of a commutative (and distributive: in Communist society) justice with the removal of real obstacles and resistances. He did not mean to be a disarmed prophet, being aware of the fact that ideas, vis-a-vis interests, do not perform very well. In fact, it is not only a moral indignation or suffering, or desire of justice that urge towards a classless society, but it is also not totally blind forces acting behind human beings. The transition is based on drives rooted in reality, on energies that are not created by fiat, and yet the ethical forceswhich will be so important to Gramsciare not despised by Marx. An ethic lives in the class struggle, in the ability of resistance and organization, in the spirit of solidarity and even in the cheerfulness of workers that meet after work for discussion, or just to be together; it lives in the moral and intellectual honesty of the British workshop inspectors whose reports are extensively used by Marx in Capital; it lives in anybodys exertion of changing the existing state of affairs according to reason. Marx tries in this way to absorb sentimental and utopian socialism into a scientific view, in which the necessity of the thing itself is assisted, but not substituted, by ethical energies. In the Antidhring Engels has offered a simplified version of this approach, which had been only sketched, more in an implicit than in an explicit way, by Marx. This version has been for a long time the standard version, and it has substituted proletarian morals for the previous refusal of any kind of morals. Engels states that notions of good and of evil change in history and in geography to such an extent as to be able to contradict each other. As a consequence, morals do not support themselves, but rather depend on practical class relations, and more in detail on economic relations within which human beings produce and exchange. No morals is better than any other from an absolute point of view, but proletarian morals, being more lasting than others (as it is in the present, the turning upside down of the present, that is, the future) is better than the bourgeois and aristocratic ones. True morals are possible only in a classless society, where causes of conflict have been overcome:
Wir weisen demnach eine jede Zumutung zurck, uns irgendwelche Moraldogmatik, also ewiges, endgltiges, fernerhin unwandelbares Sittengesetz aufzudrngen, unter dem Vorwand, auch die moralische Welt habe ihre bleibenden Prinzipien, die ber der Geschichte und den Vlkerverschiedenheiten stehen. Wir behaupten dagegen, alle bisherige Moraltheorie sei das Erzeugnis in letzter Instanz, der jedesmaligen konomischen Gesellschaftslage. Und wie die Gesellschaft sich bisher in Klassengegenstzen bewegte, so war die Moral stets eine Klassenmoral; entweder rechfertigte sie die Herrschaft und die Interessen
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der herrschenden Klasse, oder aber sie vertrat, sobald die unterdrckte Klasse mchtig genug wurde, die Emprung gegen diese Herrschaft und die Zukunftsinteressen der Unterdrckten (...) Aber ber die Klassenmoral sind wir noch nicht hinaus. Eine ber den Klassengegenstzen und ber der Erinnerung an sie stehende, wirklich menschliche Moral wird erst mglich auf einer Gesellschaftsstufe, die den Klassengegensatz nicht nur berwunden, sondern auch fr die Praxis des Lebens vergessen hat.16
The last statement is very discerning. But is it meaningful to talk of morals (Moral: here the distinction between Moralitt and Sittlichkeit is neglected) in a society without conflicts? Does not Engels himself state that
in einer Gesellschaft, wo die Motive zum Stehlen beseitigt sind, wo also auf die Dauer nur noch hchstens von Geisteskranken gestohlen werden kann, wie wrde da der Moralprediger ausgelacht werden, der feierlich die ewige Wahrheit proklamieren wollte: Du sollst nicht stehlen!17
What meaning will distributive justice still have when the criterion to everyone according to his needs prevails? Perhaps rules will be required for totally new conflicts and strains that we cannot imagine yet? Engels approach suffers from an antinomy that is well known in the history of ethics: on the one hand norms are acknowledged to be relative to time and space, changing, unstable; on the other hand such an awareness cannot be pushed to its last consequences or be widespread in society beyond some limit without leading to nihilistic, skeptical or paralysing outcomes. In order to be respected, rules need sanctions, consecrations, and trust in their nonephemeral validity. Such sanctions may be afforded by authority of custom, by tradition (the mos maiorum that, according to Cicero, must be obeyed, just because of its existence, etsi sine ratione reddita), by religion, by trust in charismatic leaders etc., or, more rationally, by endurance or claim to universality. In this last case, the most relevant to Marxist ethics, it is possible to distinguish between partial ethics, that intend to remain partial, and universal ethics. The first ones are those that deny an equal relationship between all human beings and establish differentiated rules of conduct in the relationships Ego-Alter, ourselves-others, friends-enemies. These ethics stress the division of mankind into masters and slaves, civilized and barbarians, true believers and infidels, chosen race and inferior peoples (Nazism is a clear example). The second ones are the ethic that presuppose the unity of mankind, or even, like in Kant, of all rational beings. A discriminatory treatment of the various human groups is not admissible; in the language of the Stoics, we are all citizens of the world. The ethics of Marxism, and most of all the ethics of Marxist-Leninism, is in the uneasy and aporetical position of being a partial, class ethics that claims to become universal, to be valid for every man, once classes are abolished and their consequences forgotten. It is so that tragic, contradictory attitudes originate, attitudes similar to the ones experienced by the Jacobins: to be relentless in order to be able to be merciful, to use violence in order to abolish all violence, harshly to oppose interests and values of ones class to those of others in order to be able to abolish them later. Class morals becomes a rigid provisional morals that is a step towards an ever-lasting and universal morals, a particular
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morals that refuses for the time being to become universalizable. A wartime morals, a morals for hard times , that almost spontaneously tends to stress (as in every organized mass, such as armies and churches) hierarchy and collectivistic values. Sacrifice, which was denied by Marx and Engels in The German Ideology, is necessary again. Development of individuality is put off for the classless society, when we face a luxuriant growth of human capabilities, that are, in Marxs sense, an end in themselves. We fully realize how Communism is not equality in the sense of levelling of the capacities of individuals, but that it is far-reaching differentiation; how class societies have rather levelled human beings while employing their capacities; how need, exploitation, excessive division of labor have rather suppressed and have forced within rigid schemes the latent differences of human beings.18 As a consequence, the ethics held in the phase of class struggle is a partial ethics, as the ethics of the Sophists, Callicles and Thrasimachus, such as they have been described by Plato. Just as, according to Thrasimachus, right is what pleases the strongest, i.e., what helps the interest of a particular group or of particular individuals, so, according to Lenin, right is what helps the interests of the proletariat, but also, in the meantime, what helps the transformation leading to the disappearance of classes.
We say: the ethic is what helps the destruction of ancient society based on exploitation and the unity of all the workers with the proletariat ... At the foundation of the communist ethic there is the struggle for strengthening and accomplishing Communism.19
The ethic is subordinated to the interest of the proletarian class-struggle. But who will decidein Stalins period particularlywhat this interest is? From one case to another, which categorical imperatives, or rather which watchwords will be valid? This problem may be clarified by Brechts Me-Ti. The Book of the Turns. In this book too, the despisal of morals and Soll-Stze is present:
Es gibt wenige Beschftigungen, sagte Me-ti, welche die Moral eines Menschen so beschdigen wie die Beschftigung mit Moral. Ich hre sagen: Man muss wahrheitsliebend sein, man muss seine Versprechen halten, man muss fr das Gute kmpfen. Aber die Bume sagen nicht: Man muss grn sein, man muss die Frchte senkrecht zu Boden fallen lassen, man muss mit den Blttern rauschen, wenn der Wind durchgeht.20
And that means for Brecht not only, as stated in the Dialogues of Refugees, that he refuses to bring order into a pigsty (that is borgeois society) by means of moral rules, but also that everybody follows his own interests in a naturalistic sense. For the proletariat, however, interest is coincident with collective emancipation. But how is the claim possible then of being able to formulate a categorical imperative? On what foundation can the following statement rest?
Me-ti sagte: Ich habe nicht viele du-sollst-Stze gefunden, die ich auszusprechen Lust hatte. Ich meine jetzt Stze allgemeiner Natur, Stze, die an die Allgemeinheit gerichtet werden knnen. Ein solcher Satz ist aber: Du sollst produzieren.21 Is it true that it is not merely a matter of apology of Stachanovism, provided
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that love is included too within the realm of production as it modifies the lover and the loved one.22 But, if the Soll-Stze are meaningless and it is not necessary to fight for the good, why not do like trees, that do not know any must, not even the one of producing? There are some perspicacious statements against the eternalisation of moral values, against ethical perfectionism, to which Brecht contrasts his own pragmatic Marxism. The following statement, for example:
Ka-meh wies nach, dass nicht etwa die Gerechtigkeit das Recht geschaffen hat, sondern dass, war es an Rechtsvorschriften, Gerichten, Verboten usw. zu irgendeiner Zeit gab, vage und allgemeine Vorstellungen erzeugt hat, als gbe es ein gttliches Wesen, das so etwas wie Gerechtigkeit erfunden hat oder ein Rechtsgefhl im Menschen, das ihm angeboren ist. Das Recht hat vielen, widersprechenden Bedrfnissen der Gesellschaft Rechnung zu tragen, so ist es widerspruchsvoll und wirkt oft unvollkommen. Die Gerechtigkeit jedoch, deren Verkrperung das Recht zu sein vorgibt, whrend sie nur seine Vergeistigung ist, wischt alle Widersprche aus und kann das, weil sie sich niemals in menschlichen Vorfllen besttigen muss. So scheint sie vollkommener als das Recht.23
Or the following statement:

Die Bedrckten und Missbrauchten sind fr Gerechtigkeit, aber fr sie soll nicht Druck und Missbrauch aufhren, damit Gerechtigkeit herrsche, sondern es soll Gerechtigkeit herrschen, damit Druck und Missbrauch aufhre. Die Bedrckten und Missbrauchten sind also keine gerechten Leute.24
However, why should the command Thou shalt produce or Do not exploit be unconditionally valid? If human beings by nature look after their own advantage, who will guarantee that it is possible to find a social order that will harmonize someday everybodys advantages? Only an unshakeable faith in the progress of history towards this new order is able to link partial morals with universal ones, and is able to justify sacrifice in the face of the most dishonourable and absurd charges. When Bucharin was charged by Stalin of the worst crimes (ranging from murders to the instruction of mixing glass with foodstuffs for the urban population) he still had the nerve to tell Nikolaevskij:
But one is saved by a faith that development is always going forward. It is like a stream that is running to the shore. If one leans out of the stream, one is ejected completely . . . The stream goes through the most difficult places. But it still goes forward in the direction in which it must. And the people grow, become stronger in it, and they build a new society.25
Before his death, he will state:

In these days, perhaps, the last of my life, I am confident that sooner or later the filter of history will inevitably sweep the filth from my head . . . Know, comrades, that on that banner which you will be carrying in the victorious march to communism, is also my drop of blood.26
So, it seems that in communist ethics morals and history melt together: history becomes the Court of Appeal for the mistakes of the Party and posthumous
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rehabilitation becomes the acknowledgement of the sacrifice of the innocent militant. An old idea is also strengthened which today takes on more dramatic aspects, that of the guilt of innocence. Class interest may have to find scapegoats in difficult moments. The militant, and even more the care should be ready, for the party, even for such a sacrifice. The party however, besides having the monopoly of moral teaching and its innovations, protects and fosters class interests and the struggle for a state of affairs in which morals will be eventually human. That is why, after Stalins era, in East European countries there has been a widespread diffusion, particularly through the school of ethics based on love for the party and on collective values and class solidarity. Thus, in Fedorenkos code of communist virtues, the main commands pertain to loyalty to the communist cause, love for socialist countries, love for accurate work, and intolerance to injustice, idleness and all the enemies of Communism.27 (3) Nowadays the tide of collectivist ethic seems to be over that used to dominate Europe (and not only the Soviet Union) between the two wars. The military model, strengthened in the trenches of the Great War, the Kameradschaft, had given to Italian Fascism, German Nazism and other European nationalist movements an alternative to proletarian class solidarity. The Hero cult had been accompanied by glorification of gregarious virtues (To believe, to obey, to fight); the despisal for the materialistic conception of happiness that Mussolini would have liked to leave to the economists of the mid-eighteenth century, and an apology of sacrifice for the Fatherland, with a morals depersonalization, of anonymous heroism, exemplified by the altar to the Unknown Soldier. Nowadays the ethics of sacrifice and endurance have cracked, and they are observed with less and less zeal and with growing reservations. Is it perhaps because the agencies disseminating ethical values (Fatherland, party, class, Church, tradition) have lost their monopoly and have to come to terms with rival conceptions? Is it perhaps because pathos for collective values has lessened and private previously unsatisfied needs have come to the fore? Is a new distinction between Moralitt and Sittlichkeit appearing? In order to avoid undue generalizations and rash diagnoses it would be safer to state that the previous relationship between ethics and politics, in terms of allegedly complete subordination of ethics to politics, of the individual to the party, to Fatherland or to the State, has modified and relaxed. Antipolitical and antistate demands have condensed into a claim of relative independence from general laws coming from above. But we need not stop at these surface phenomenon at the most obvious and macroscopic aspects. Obviously enough the relationship between ethical and political values is modified because the role of the collectives has changed, but this change is more viscious and complex than it appears, it takes on different tones at different places and it does not develop everywhere at the same pace. A fresh interest in ethics has not the same meaning every time: it may imply a refusal of the political dimension, a claim of reducing the powers of the State, the defence of unalienable natural rights, but also just the need to think again about a few problems, revisions of the boundaries between the several domains of existence, transformations of both the politico-institutional
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structures, the legal order, the public sphere, on the one hand, and custom, perception of rules, personal relationships, on the other. It seems to many people that, in the countries which have reached a certain level of welfare, mass immoralism or mass hedonism is spreading. Once upon a time immoralism was the lot of small intellectual elites, like the Bloomsbury Group (even if what it actually implied was substituting one ethical code for another).
We entirely repudiated a personal liability on us to obey general rules. We claimed the right to judge every individual case on its own merits, and the wisdom, experience and self-control to do so successfully . . . We repudiated entirely customary morals, conventions and traditional wisdom. We were, that is to say, in the strict sense of the term, immoralists.28
It is suggested sometimes that the virtues of exactness, honesty, soberness, thriftiness, that used to mark not only the spirit of capitalism but also, even if in a coercive way, the ethic of the lower classes, have lost everywhere their reputation, and that the will to enjoy and not think of the future has infected everybody. It is necessary again to avoid such oversimplifications and to try to understand what has happened in a number of countries in the last decades with growing and more widespread affluence, and what could possibly happen if the situation were to change. Definitely, the ethical codes of conduct that were previously separated by class boundaries or by geographical or cultural distances have met, blended, collided, without finding higher authorities that could effectively blend or justify them. Tradition, having weakened, cannot fully legitimise them; conflicts between different standards of conduct cannot be argued for and explained; sudden changes do not help the entrenchment of rules. Phenomena of ethical bewilderment appear which may partly account for the repudiation of ethics, for adjustment to the existing order, for the rise of several private individual morals, for the erosion of real or supposed obligations, as well as for the political relevance of the control of the mass-media that substitute to some extent the need previously felt for permanent rules, by providing a day-to-day orientation. Such a state of affairs cannot be cancelled out. Imaginary restorations of exact and rigid ethical codes cannot be dreamt of, and a triumphal return of a moral consciousness free from external conditioning and able to enact a universal legislation of action cannot be expected. But is it enough to follow, as Descartes suggested, those customary rules that have been sucked with the wet-nurses milk? Shall we give up the idea of consciously directing our lives? Are we really situated in such a meaningless, polytheistic world, as to make any reasonable and justifiable ethical conduct impossible? The fact is often forgotten that morals refer not to disembodied values or to the vacuum of conscience, but rather to deliberations and choices, to meaningful criteria. Against Weber, or rather against some interpretations of Weber, the polytheism of values should be acknowledged not to be absolute. Values are not at the agents disposal as in a collection of samples from which one can freely choose the one or the other, but they appear every time within a particular socio-historical framework, with limits and constraints. The moral agent never starts from scratch, or from an infinite range of possibilities, but
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he starts rather from determined choices, from specific alternatives, from meaningful conflicts. Is Entzauberung or disenchantment of the world, or the decay of religions, enough to deny any meaning to moral conduct? Or shall we wait for the rise of a peaceful society in order to have at last rules of conduct (and meanwhile shall we ourselves conform to the conduct of majorities)? However, moral demands seem to reappear today in different ways and this symptom needs to be taken seriously. The Party with a thousand eyes, the Church and Tradition can no longer provide a safe direction for individual action, and cannot take away any more from the individual the burden of choices; but collections of precepts, casuistry, emotional or occasional choices are not adequate. Do we have to talk again of morals?29 And shall we do that precisely at a time when, with the renewed interest in Nietzsche and Heidegger, the very discussion of ethics seems to be more and more weakened? At a time when we face a grand return of Realpolitik, and to so-called human rights are abused every day? However, at least in democratic countries with a complex society, the moral problem seems to be unavoidable. And this happens not only because of contingent reasons, in order to fight the corruption of public institutions, occult powers or the degeneration of politics, but because of a more substantive reason, that has been already singled out by Schumpeter: are the political market of votes, a system of free elections and of formal guarantees enough to legitimise democracy? Would the society which on the basis of majority rulehe was writing in 1942where Jews were persecuted or witches burnt still be a democracy? In cases in which a regime does not stand by mere force, is respect of purely procedural rules enough in order to qualify it as democratic, or should respect of a core of substantive rules be presupposed, without which every modern democracy degenerates? The debate of the last decades on the theory of justice and the revival, at different levels, of Natural Law approaches provide an answer also to this question, or to the problem of a not merely procedural foundation of democracy (or rather of several possible versions of democracy understood in a non authoritarian sense). The concept of justice (to talk of social justice is redundant, as justice never involves the individual as such, but rather relationships between individuals and communities) is a good starting point for clarifying the relationship between ethics and politics. It is a hinge between the two domains that have been separated by post-classical thought and it is the center of the topic named public morality. Those who have grown up in the Italian tradition have been abundantly warned against the alcinesche seduzioni della Dea Giustizia (Croce) and have been vaccinated against it by heavy doses of historicist and neo-Machiavellian realism. The elite theorists have explained that every political regime, whatever its label, is always ruled by small oligarchies that try to impose their own interests disguised as autonomous and universal moral values. Injustice, according to Pareto, is nothing more than a disturbance of the social equilibrium, whose meaning is perceived every time people try to modify the established criteria usually imposed and accepted: The one who states that is unjust means that such a thing offends his sentiments, such as they exist in the state of social equilibrium in which he lives.31 The ideal of justice, as a
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consequence, is merely a residue. Natural Law in Italy was almost wiped out at the beginning of the 19th century, at the time of Vincenzo Cuoco, having been accused with the same charge of abstractness that was made against the principles of 1789. The traditions of secular thinking have often leaned on Hegelianism or on Marxism in order to absorb the problem of individual rights into problems of State and Class. There have been, obviously enough, some exceptions (like Carlo Rosselli) but as a rule, and for historical reasons that are easy to understand, our theoreticians of Liberalism and of Liberal Socialism have been favoring more a strong State than a minimal State. In other countries however, the Natural Law tradition, even if not hegemonical, never completely died out. This is true, firstly, of the Anglo-Saxon countries, where parliamentary regimes, the cradle of modern political democracy, have never been formally interrupted in the last two centuries, and where the Constitution of the United States can be said to have a Natural Law-approach, even if ideological overtones are taken into account, an approach that explicitly appeals to the unalienable rights of individuals, the right of pursuing happiness included. But also in Germany, due to the influence of Kant and of Neokantianism, Natural Law theories managed to survive, not only as a subject-matter of study (like for Gierke) but also as constructive proposals (like for Leo Strauss). In the following section I shall review two different kinds of the revival of Natural Law, that originated both in the last decades, coming from opposed cultural and political areas, even if (by mere chance?) they were worked out in the same place, namely Cambridge, Massachussets. Such a review may be a useful first step to start a substantive discussion of the matters at stake, and so come back to our present day concerns. II. Two Theories of Justice (1) I shall discuss Ernst Blochs and John Rawls contributions, namely Naturrecht und menschliche Wrde and A Theory of Justice. The first book was conceived by Bloch in Cambridge between 1942 and 1949 during the period of his American migration,32 with the effects of Stalinism in mind. The period in which the book was worked on was rather long, also because of its overlapping with the writing of Subject-Objekt and of Das Prinzip Hoffnung. When the book appeared in Frankfurt, in 1961 (the year in which Bloch left the DDR after a period of conflicts with political and academic authorities), the authors purpose was clarified in the direction of presenting a democratic alternative, on a partly Natural Law-inspired basis, to the Soviet style real socialism. The repressions of the Berlin revolt of June 1953, the slow pace of destalinization, the authoritarian and bureaucratic characters of Ulbrichts socialism, urged Bloch to explore more in depth what were labelled anonymous errors or rather one mans faults. Thusalso through the mediation of Rosa Luxemburgs theorieshe comes back to Marx and argues that Marx did not take Natural Law seriously enough, and that he had unsatisfactorily worked out the notion of the dictatorship of the proletariat.33 Human dignity and democracy are inseparable concepts. Utopian thinking has privileged the topic of
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human happiness, while Natural Law has stood for walking upright, for human dignity, against every kind of abasement, including the one deriving from the States omnipotence. It is necessary to graft on to the trunk of Marxism this Natural Law branch, also because there could not be any socialism without its ethical correlation, that is justice. He reconstructs the evolution of Natural Law thinking from the Stoics up to its modern forms, but the central point is acknowledged to be Kant, summarized in the statement that if justice disappears, it is no longer worthwhile for human beings to live on earth.34 But justice is founded on the acknowledgement of dignity of the individual, or in Kants terms:
Im Reiche der Zwecke hat alles entweder einen Preis, oder eine Wrde. Was einen Preis hat, an dessen Stelle kann auch etwas anderes als Aquivalent gesetzt werden, was dagegen ber allen Preis erhaben ist, mithin kein Aquivalent verstattet, das hat eine Wrde.35
And furthermore:
Achtung, die ich fr andere trage, oder die ein Anderer von mir fordern kann (observantia aliis praestanda), ist also die Anerkennung einer Wrde (dignitas) an anderen Menschen, d.i. eines Werths, der keinen Preis hat, kein Aquivalent, wogegen das Objekt der Werthschtzung (aestimii) ausgetauscht werden knnte.36
Such an acknowledgement of the dignitas hominis needs to be preliminary and cannot be negotiated. It is not only a glorification, in a humanistic sense, of this value (such as can be found in the Oratio de hominis dignitate by Pico della Mirandola)37 but it is rather a vindication of human dignity against those who reduce man to a tool of something that is considered to be incomparably higher, be it the State or the Class. Such a reduction had already been done by Hobbes in Leviathan:
The Value, or worth of a man, is as of all other things, his Price; that is to say, so much as would be given for the use of his Power: and therefore is not absolute; but a thing dependant on the need and judgement of another. An able conductor of Soldiers, is of great Price in time of War present, or imminent; but in Peace not so. A learned and incorrupt Judge, is much Worth in time of Peace; but not so much in War.38
Dignity for Hobbes is nothing more than the value bestowed on man by the State by means of peculiar signs of distinction:
The publique worth of a man, which is the Value set on him by the Common-wealth, is that which men commonly call Dignity. And this Value of him by the Common-wealth, is understood, by offices of Command, Judicature, publique Employment; or by Names and Titles, introduced for distinction of such value.
But it is against Carl Schmitt, who revives Hobbes approach, that Bloch fights in a particular way. His decisionism is a kind of anti-Natural Law.40 It destroys both the rights of the individual and the universal nature of law in favor of several particular laws that bear the character of privileged and
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arbitrary acts. He comes back to the thesis of Thrasimachus: right is what pleases the strongest, what is decided by those who hold power. We are in the midst of injustice: in Aristotles terms it is injustice by defect, discrimination, whim, as contrasted with injustice by excess of justice, with levelling. Justice is neither to treat everybody as being unequal, nor to treat everybody abstractly as being equal; it is neither the arbitrary attribution of advantages and burdens, nor the levelling of everybody. It is also polyphony of a unison, relation, proportion that has to be found. It is not, however, proportion in a patriarchal, sense, partium aequa libratio, following the model of the head of a family or the sovereign who, from above, without the right of appeal, without discussion or consultation, pours into everyones dish his own portion of punishment or his quota of social goods,41 but it is rather a proportion that should be found together, justice from below, the end of exploitation and the building of a classless society. The utopian tension in Blochs thinking implies no wiping away of history, even if the coming of justice in Communist society carries along in his work the Messianic overtones of a finally satisfied expectation. But the principles of Natural Law, that is dignity and justice, can receive a historical foundation, even if in a history that seems to lose the characteristics of opaqueness and violence in the regnum hominis of concrete utopia of a classless society? Are Natural Law and History, Natural Law and Utopia, able to coexist? (2) The book of Rawls42 originated as an answer to rather different questions: it was an answer to problems of a relatively affluent society like the American one and its polemical targets were the utilitarian tradition, or forms of possessive individualism still widespread. I will not develop a historical comparison nor will I try to bring together such distant viewpoints. Some kind of comparison will however make sense, not only because it will enable us to see howin so different political and geographical contextsit is still possible to have recourse to a Natural Law-approach in order to solve present day problems, but also because it will enable us to highlight a crucial problem, that is, the problem of the exclusion from exchange of some good, be it dignity or freedom. The main question for Rawls is: are there criteria to judge whether a society is just, and if there are any, what are these criteria? How could one try to figure out a society in which also the less advantaged could have the maximum amount of benefits? There are several explicit or implicit polemical targets. Singling them out could help in reconstructing Rawls constructive argument. Firstly, refusal is implicit of the Weberian polytheism of values and of every kind of ethical relativism. Human beings, according to Rawls, are able to agree on what is just, and to legislate in a rational way on values. The original position is not merely the traditional transition from the state of nature to civil society, but it is rather the ideal ground on which we should place ourselvesas egoistic but rational individuals, neither envious nor privilegedin order to establish the criteria for a just society. Justice may be understood as the locus where egoism and contractual rationality coincide. It is a middle point between the classical constant will of giving to everybody what is his own and the modern general will that distributes primary goods produced cooperation. In disagreement with Olson and Arrow, Rawls seems
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to have the intention of definitely reintroducing the idea of a common good, and even the idea of a hierarchy of goods as contrasted with any polytheism of values or with any decisionism that puts the various values on the same footing. Olson has denied that a general interest, and its ethical counterpart, that is, a common good that is valid for all, can exist. He has argued, quoting Aristotle, that small groups are qualitatively different from big groups, and that only the former ones are able to pursue common goals and to produce forms of real solidarity. As far as the latter are concerned, there is a tendency to desire the benefits deriving from affiliation to a group or to a community, but to avoid the corresponding burdens. In order to reach some common good, different and selective incentives for every individual would be required, and that is clearly impossible. Furthermore the active individuals, the ones able to take decisions of general relevance have always been few.43 According to Arrow, it is impossible to shift from individual rationality (the only one that is admitted at the level of methodological individualism) to collective rationality, that appears to be left to chance or to violence. As a consequence, power only is able to regulate life and social choices:
If we exclude the possibility of interpersonal comparisons of utility, then the only methods of passing from individual tastes to social preferences which will be satisfactory and which will be defined for a wide range of sets of individual orderings are either imposed or dictatorial.44
A further corollary of this theorem has been formulated by Hirschmann: this corollary states that collective action is substantively regulated by emotional factors, that is, loyalty or refusal of loyalty or disaffection to groups, rather than by rational criteria.45 A gregarious logic would then hold both for customers of a supermarket and for members of big political groups.46 It needs to be stressed that Rawls refuses both solutions based on power and solutions based on the herd instinct or on emotional factors, in order to argue for the possibility of thinking in rational terms a just social situation and a logic of collective action. Rawls states, against the utilitarians and against Nozick,47 that a rational hierarchy, or a rational lexicographical order, can be established between several principles. Such an order would safeguard the rights of the social group without sacrifice of the rights of individuals or vice versa (it is worth remarking that it is not a reconciliation on the same footing, but rather a hierarchical ordering of choices). Utilitarianism, aiming at the greatest happiness of the greatest number, takes into account the logic of cooperation, but it does not take the distinction between persons seriously, treating them as units rather than as individuals. It may sacrifice, as a consequence, the freedom and life of the individual for the sake of the welfare of the greatest number. As an example: the sheriff of a small town, in order to avoid bigger disorders that would probably cause a number of casualties, puts an innocent to death. In such a way he saves many lives by sacrificing one.48 Is such a criterion just or should rather the Kantian fiat justitia el pereat mundus hold? The happiness of the greatest number is more important than the life and dignity of the individual. Nozick, in his strong defence of a possessive individualism with a Lockean inspiration that he tries to link with the in-
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dividualistic anarchist tradition, with Stiners Einzige, take an opposite stance. Individual existence and its immediate conditions are absolutely not negotiable, not alienable goods. There is no highest good in relation to which the individual might be considered as a means; there is no sacrifice that is worth doing to somebodys elses benefit:
Why not (. . .) hold that some persons have to bear some costs that benefit other persons more, for the sake of the overall social good? But there is no social entity with a good that undergoes such sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one these people for the benefit of others, uses him and benefits the others. Nothing more.49
But if individuals are for Nozick incommensurable, every theory of justice vanishes, because justice means proportion, commensurability, social relation. It is clear thus why Nozick defendsthis time against the whole Natural Law-traditionaccidents and privileges given by nature, by society and by history. What has been produced by chance, by the natural lottery (in Rawls words) must be honored; differences in talent, revenue, education included, because, according to Nozick, our very life is based on chance:
Each existing person is the product of a process wherein the one sperm cell which succeeds is no more deserving than the millions that fail. Should we wish that process had been fairer as judged by Rawls standards, that all inequities in it had been rectified? We should be apprehensive about any principle that would condemn morally the very sort of process that brought us to be, a principle that therefore would undercut the legitimacy of our very existing.50
When contrasted with such an apology of the whim of the status quo, Rawls argument appears more convincing and powerful. He places himself on a ground that enables him on principle to give a new formulation to a whole family of problems related to justice and to distribute in a different and graded way what is negotiable and what is not. In contrast with Hobbes, for whom human beings possess no intrinsic dignity, but only a price, he stresses the primary value of human dignity. But he does not transform it into some kind of egoistically incommensurable property, like Nozick, nor does he abuse it through subordination to the primacy of happiness of the greatest number, like the Utilitarians. His own solution is to safeguard the dignity of man within the framework of the communal bond of justice. Such an equilibrium is of course difficult, but it avoids at least the complementary hypotheses of the State-Leviathan and of absolute individualism. Freedom of the individual is for Rawls superior in any case (in rank, lexicographically) to the difference principle: which amounts to saying, in classical terms, that preservation of freedom is more important than the removal of inequalities. Or rather: without safeguard, and without extension, of the enjoyment of those primary goods that must be distributed with justice (the several forms of freedom, dignity and preconditions of self-respect) it is not even possible to reduce inequalities. The first expression of justice is thus the way in which the several forms of freedom, that is, of those goods on which all the others are based are allocated. galit is not any more the goal of social justice, nor are
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preservation of existing inequalities and the stabilization of chance. Rawls does not only mistrust the stagnating character of equalitarian societies (provided that an effective reduction of inequality is possible), but he also thinks that they must produce perverse effects, that they violate justice, as far as they tend to abuse freedom, that is, to subvert the lexicographical order. The reformulated difference principle states in its first part: Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just saving principle...51 It is thus related more with fraternit than with galit. It tends, in fact, not to abolish inequalities, but rather to use them in order to benefit the naturally and socially less advantaged. A society is just if (along with other requirements) it favours, in a conscious and artificial way, those that the natural lottery has put in a worse position. Justice and brotherhood thus require a principle of social compensation for wrongs and disadvantages, which is a principle implying radical reparations, brave innovations, and not in any way quietistic. He presupposes that nothing intrinsically justifies privileges, neither chance, nor merit, skills, intellectual or entrepreneurial capabilities. Skills too are a kind of social wealth that should be redistributed, used not only in the common interest, but precisely in the interest of the less advantaged. As an example, in the field of education, justice would imply that precisely the less talented should be most supported in order to reduce, as far as possible, social and natural inequalities. (3) One could certainly suggest that the difference principle is a moderate alternative to the class struggle, that is, the refusal of a revolutionary overthrowing of the social situation, or also, that on such a basis the poor man benefits from the crumbs that fall from the table of the rich.52 One could also suggest that Rawls moral geometry underlines the scope of perverse effects in social institutions: he does not realize that any increase in distributive justice is paid for by a decrease of freedom. It must be acknowledged however, that his contribution is one of the most sophisticated attempts at stating the terms of the problem of justice in a democratic society, at mediating between the liberal tradition of the defense of freedom and the radical-democratic tradition of fighting inequalities and of supporting less advantaged groups. Of course inequalities are assumed to be necessary and profitable as incentives, or perhaps as a way of allocating resources into the hands of those that can make the best social use of them.54 But the struggle against their sway should nonetheless be resolute. There is probably in Rawls, beside the Kantian and Natural Law approach, some religious pathos: the concept of a well-ordered society is taken to be an extension of the idea of religious toleration, and an interpretation of the kingdom of ends,55 and the very idea of brotherhood echoes the Christian idea of caritas. But the main theoretical shortcomings lie elsewhere, and they can be summarized by the two following questions: 1) How is it possible, without lapsing into abstractness, to ignore real history, the actual power-relations, and more generally to take history and nature as mere accidents that reason can and must ignore? 2) On what basis is it possible to exclude something from exchange or from rational justification, making it a taboo? In other
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words, how is the lexicographical order or the primacy of human dignity justifiable for Rawls, or, in the opposite camp, how is the primacy of the authority of the State justifiable? In fact, for every Natural Law philosopher, history and nature are within the realms of chance, and reason is not able to formulate judgments if it lacks some invariant standard that cannot be derived from changing historical and natural events. But from what else can such an invariant standard be derivedeven if through complex formulations rather than by reflection of some particular situationif it is not an innate idea, if not from conceptions that emerged in history in connexion with constellations of particular and partially but continuously shifting problems? The Natural Law or the constructivist claim is a sensible and a very important one: it is the demand to rule out in the name of History and Nature56 (1) lapses into ethical relativism; (2) justification of privileges and of the status quo; (3) the possibility of anybodys self-appointment as the interpreter of the will of History (like Stalin) or of Nature (like Hitler, via the myth of race). Ethical relativism was the danger that seventeenth century Natural Law philosophy tried to avert. When Pascal stated that jurisprudence changes as latitude changes, or that justice is different on the opposite sides of a river he was assessing something that had been abundantly proven by travellers reports.57 The Natural Law philosophers reply was the attempt at finding a rational foundation for the rights of man in his deepest nature, at any latitude and at any time. But does a metahistorical unchanging human nature really exist? Or does all that amount to a prescriptive discourse, to expression of an unshakable will not to let human rights be abused? The most convincing solution that Natural Law philosophy has given to this dilemma is the latter. That is, it is rational to want human beings to be, artificially, treated as the owners of fundamental and inalienable rights, and to want the social situation to be judged according to its capacity of guaranteeing and developing such rights. A just society Is accordingly the one based on respect of individual rights, and this respect converges with the development of the whole. The social contract means establishing the ways of a rational agreement between the wills of the various contracting parties. Thus the criteria of justice are not rigid, relentless, objectively binding natural laws, but they are rather the outcome of a possible rational agreement or of a reasoned consensus. They lie outside history and natural fortuitousness only as far as one should leave out of consideration the constraints put on existing reality when judging whether something is just or not (just as the physicist leaves real friction out of consideration when establishing the laws of motion). Has the problem been solved in this way? It seems to me that it has only shifted. How could a rational agreement on justice leave the countless diversity of situations out of consideration, and establish universal principles? Wouldnt a piecemeal social engineering like the one proposed by Popper be more realistic then? Is it not more realistic, in the Aristotelian sense, to bring justice back into the domain of phronesis, into the domain of practical wisdom or prudentia, that applies elastic criteria to individual changing situations and that rules out the strong criteria of episteme in human affairs, provided that episteme is admissable for
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what is unchangeable, like mathematical entities? And if universal principles were possible, would not they be so poor in content, so removed from substantive law and real situations as to have, at most, an exhortative value? Rawls himself acknowledges that the lexicographical order is historically changeable, and that in certain periods (for example during the Industrial Revolution) priority of freedom may not hold,58 and that his theory is valued for democratic societies with limited scarcity. The question then arises: how is it possible to consider history merely as a lottery, as a realm of chance from which reason is excluded? One does not need to accept a philosophy of history to acknowledge that events have a certain meaning; that this meaning must be understood and justice measured and exercized by it; and to acknowledge also that it was the philosophies of the 17th and 18th centuries that discovered, contrary to Natural Law linearity, the presence of unintended results and perverse effects. To sum up: an important and intriguing point is still waiting to be clarified, and that is the relationship between justice and realt effettuale, or between ideas and history. Both a historicist reductionism of values to a mere reflection of contingent individual situations, and the Kantian and neo-Kantian separation of ideas from facts have proved to be not very fruitful solutions. The second issue is strictly related the first. To exclude some reality from history or from change implies bestowing on that reality the status of not exchangeability, as far as it is supposed not to need any further justification, or to be self-justifying. To establish human dignity, freedom, or, on the opposite front, the authority of the State or the absolute and arbitrary rights of chance in the position of highest value, is perhaps a necessary, but in no sense an innocent, move. I shall formulate a general hypothesis: I suggest that taboos are most frequent in societies at their most sensitive points, and are such that it would not be difficult to justify in terms of immediate evidence. The taboo is then an area of social danger, from which one defends himself more by prohibition than by argument, as far as the reason for prohibition becomes a tautology. For example: incest is forbidden because it has always been so; because there would be some reason; because I dont know; because it is so ... The taboo thus sets up protective belts around the most sensitive areas of the social order. In a similar vein, I suggest that in theories as well (but there are here also structural reasons, as far as, in order to be able to talk about anything, one needs presuppositions) there is such a phenomenon as the creation of taboos: the weakest points are withdrawn from criticism, and are put in a higher position in order to make a closer examination impossible. In the Natural Law, Kantian, and in the case, Rawlsian traditions, human freedom and dignity are subjected to this treatment. On what else will human dignity rest if not on the tacit presupposition of the will to defend a moral claim that is felt to be such even if it is not justified? But why should anybody, from a rational point of view, accept such a standpoint? Wouldnt the Marquis de Sade, Nietzsche or Pareto be able to put forth excellent arguments against this purely moral foundation of dignity and freedom? Even Hegel, reviving the Aristotelian doctrine that the whole is by nature prior to its parts, could not reasonably oppose the authority of the State (that too made a taboo and not
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negotiable) to the dignity and freedom of the individual? Or, last of all, wouldnt Nozick, making the incommensurability of individual existence a taboo, have enough reasons to reject any idea of distributive justice? The intricate question that needs clarification is whether it be possible, from a theoretical point of view, to formulate theories without presuppositions and areas of unthought, and from a practical and political point of view, whether it be possible not to lean on something given by authority. The first half of the question cannot be answered in the present article. It is clear, however, that a good theory gives a foundation, rebours, retrospectively, to its starting points, and finally welds them into the whole. The answer to the second half of the question is more important for our purpose. The non-negotiable character, in some situations, of the primary goods (freedom, dignity, self-respect, etc.) could be taken to be an objective precondition of a social exchange that is productive and fruitful also for individuals. In other words: not to deny any freedom or dignity of others as well as of ourselves, not to make self-respect impossible for ourselves as well as for others, could be assumed to be the first rule enabling a fair game to start. But wouldnt that be a utilitarian solution? Wouldnt freedom and dignity again be founded on some social requirements? Wouldnt they be derived? How is it possible to justify the primary character of freedom having recourse only to rational argument and ruling out history and phronesis? Does not the typical conflict of Enlightenment arise again between a pure treason, transformed in court, and a blind authority, based on history and on privilege? A conflict or a combination of reason and authority seem to be then the way for escape or for compromise. But such a separation cannot be fully convincing, as it cuts off almost two centuries of thought and experience. Reason is possibly less pure, and history and reality less absurd, than is usually maintained. A return to Kant and to Natural Law may be a symptom of real and important theoretical and political needs, but such a return should be aware of the contributions of contemporary Continental philosophy, and not be based only on Welfare Economics and the utilitarian Anglo-Saxon tradition. Nevertheless, it is precisely from the discussion of the topic of rational consensus by the individuals to a just social order that an answer could be looked for a twofold legitimisation crisis. The first aspect of this crisis, the less recent for our culture, is the erosion of the significance of ethical values and of individual rights; the other aspect, more recent for us, is the erosion of belief in any super partes character of the State. One could say that nothing is left nowadays that is inalienable, transformable into a taboo, withdrawn from negotiation, and that the protective belts around natural dignity of the individual or around natural authority of the State have been shaken. States and individuals join a complex and relentless game of agreements and negotiations, a mixed game, at the same time cooperative and conflictual, in which the positions of the parties constantly shift. Shall we establish only the rules of the game or also the rules for reaching an agreement on the modification of the rules? And what kind of rules could these be? The open questions are many, and the field to be explored is still wide. A discussion of the relationship between ethics and politics within this new context might make relevant contributions.
146
NOTES
29. See Eric Weil, Faudra-t-il de nouveau parler de morale?, in Savoir, faire, sperer. Les limites de la raison
1. See BernardWilliams, Morality.An Introduction to Ethics (Cambridge; Cambridge University Press, 1978), p. 9. I shall not try a reduction of the several meanings given to the terms ethics and morality in the several traditions of thought. The reader will be able to understand which meaning is meant from the context. It is worth stressing however that I shall not use ethics to refer to the discourse on morality, and that I describe by this term, rather than conscience, the domain of public morality and custom. 2. Stephan H. Pfrtner, Zur wissenschaftstheoretischen Begrndung der Moral, in Niklas Luhmann and Stephan H. Pfrtner, Theorietechnik und Moral (Frankfurt: Suhrkamp, 1978), p. 177. 3. Robert Musil, Der Mann ohne Eigenschaften, (Berlin: Rowohlt Verlag, I960), pp. 593-594. 4. See Carlo A. Viano, Etica (Milano: ISEDI, 1975) pp. 19 ff. 5. On the history of this idea see Johannes Stelzenberger, Syneidesis, Conscientia, Gewissen, Eine Studie zum Bedeutungswandel eines moraltheologischen Begriffs (Padeborn: Schningh, 1963). 6. Niccol Machiavelli, Il Principe, ch.18, par.vi, in Opere, ed. M. Bonfantini (Milano and Napoli: Ricciardi, 1954), p. 58. 7. See Artistoteles, Rhet., I,5,1361a22: it is our own if it is in our power to dispose of it or keep it. By disposing of itI mean giving it away or selling it, in The Works of Aristotle, ed. W.D. Ross (Oxford: Clarendon, 1966), vol.11; see also Digesto, 18,1;67: Alientio tum fit cum dominium ad alium transferimus. 8. Jean-Jacques Rousseau, mile ou de lducation, in Oeuvres compltes (Paris: Bibliothque de la Pliade, 1964), vol.4, p. 254. 9. Jean-JacquesRousseau,Ducontratsocial,inDucontratsocialetautresoeuvrespolitiques(Paris:Garnier, 1975), p. 235. 10. See also Remo Bodei, Ragione e Terrore: sulla tirannide giacobina della Virtu, Il Centauro, 1 (1981), n.3, pp. 38-58. 11. See Karl Marx and Friedrich Engels, Die deutsche Ideologie, in MEW (Berlin: Dietz, 1953-), Band 3, pp. 238;239 n. (crossed out in the manuscript). 12. See Karl Marx, Brief e aus den Deutsch-Franzsischen Jahrbchern, in MEW, Band 1, pp. 345-346. 13. Karl Marx and Friedrich Engels, Die deutsche Ideologie, op.cit,, p. 229. For further discussion see Eugene Kamenka, The Ethical Foundations of Marxism (London: Routledge and Kegan, 1962). 14. Karl Marx, Zur Kritik der Hegelschen Rechtsphilosophie. Einleitung, in MEW, Band 1, p. 385. 15. Johann Gottfried Herder, Der Cid, in Smtliche Werke, ed. B. Suphan (Hildesheim: Olms, reprint edition, 1968), Band 28. p. 505. 16. Friedrich Engels, Antidhrung, in MEW, Band 20, pp. 87-88. 17. Ibid., p. 87. 18. See Karl Marx, Das Kapital, in MEW, Band 25, p. 828. 19. Vladimir Ilich Lenin, Zadachi solzov molodezh (The tasks of the youth unions, 1920), in Polnoe SobranyeSochinenii (Moskv:Gosudarstvennoeizdatelstvopoliticheskoiliteraturi,19635),vol.41,p. 311, p. 313. 20. Bertold Brecht, Me-ti. Buch der Wendungen, in Gesammelte Werke (Frankfurt a.M.: Suhrkamp, 1967), Band 12, p. 564. 21. Ibid., pp. 498-499. 22. Ibid., p. 571. 23. Ibid., p. 482. 24. Ibid., p. 476. 25. See Boris I. Nikolaewsky, Power and Soviet Elite: The Letter of an Old Bolshevik and Other Essays (New York: Praeger, 1965), p. 25. 26. Nikolai I. Bucharin, quoted in RoyA. Medvedev, Let History Judge. The Origins and Consequences of Stalinism (New York: Knopf, 1971), p. 184. 27. E. G. Fdorenko, Osnovy marksisto-leninsko etik (Fundamentals of Marxist-Leninist Ethics), (Kiev, 1972), p. 82; . . Chernokozov and V. N. Chernokozova, Osnovy kommunistickesko moral (FundamentalsofcommunistMorals),(Moskva,1971).SeealsoK.A.Ziegert,NachderEmanzipation des Rechts von der Moral, in Theorietechnik und Moral, op.cit., pp. 151 ff. 28. John Maynard Keynes, My Early Beliefs, in The Collected Writings (London: Macmilland, 19724), vol.10, p. 446.
147
58.
(Bruxelles: Publications des Facults Universitaires Saint-Louis, 1976), vol. 1 pp. 265-284; see also Eric Weil, Philosophie morale (Paris: Vrin, 1969), passim. 30. See Joseph Schumpter, Capitalism, Socialism and Democracy (London: Allen and Unwin, 1954, originally published in 1942), pp. 240-243. 31. Vilfredo Pareto, Trattato di sociologia generale (Milano: Comunit, 1964, reprint of the second ed. of 1923), vol. l, par. 1210, p. 732. 32. See Silvia Markun, Ernst Bloch in Selbstzeugnissen und Bilddokumenten (Reinbeck bei Hamburg: Rowohlt, 1977), p. 60, p. 131. 33. See Ernst Bloch, in E. Bloch and F. Vilmar, Ein Gesprch ber ungelste Aufgaben der sozialistischen Theorie, in ber Ernst Bloch (Frankfurt a.M.: Suhrkamp, 1968), pp. 88 ff. 34. Immanuel Kant, quoted by Bloch in Smtliche Werke, ed. G. Hartenstein, (Leipzig 1838-39), Band 7, p. 150; see Ernst Bloch, Naturrecht und menschliche Wrde, (Frankfurt a.M.: Suhrkamp, 1961), p. 99; for further discussion see Remo Bodei, Multiversum. Tempo e storia in Ernst Bloch (Napoli: Bibliopolis, 1982). 35. Immanuel Kant, Grundlegung der Metaphysik der Sitten in GS (Gesammelte Schriften, Berlin and Leipzig: Akademie-Ausgabe, 1900- ), Band 4, p. 434. 36. Immanuel Kant, Metaphysik der Sitten, II, l, 2, par. 37, in GS, Band 6, p. 462. 37. See Pico della Mirandola, Oratio de Hominis Dignitate, in Filosofi italiani del Quattrocento, ed. E. Garin (Firenze: Le Monnier, 1942), pp. 475 ff. 38. Thomas Hobbes, Leviathan, I, 10, ed. C. B. Macpherson (Harmondsworth: Penguin Books, 1981), pp, 151-52. 39. Ibidem, p. 152. 40. Ernst Bloch, Naturrecht und menschliche Wrde, op.cit., p. 173. 41. Ibidem, p. 228. 42. See John Rawls, A Theory of Justice, (Cambridge, Mass.: Harvard University Press, 1971); a first statement of theory was offered in Justice as Fairness, The Philosophical Review, 67 (1958); revisions of the theory were presented in A Kantian Conception of Equality, The Cambridge Review, (1975), pp. 94,99; Kantian Constructivism in Moral Theory, The Journal of Philosophy, 77 (1980), pp. 515-572. 43. See Mancur Olson, The Logic of collective Action. Public Goods and the theory of Groups (Cambridge, Mass.: Harvard University Press), 1965. 44. Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, Journal of Political Economy, 66 (1950), pp. 328-46, p. 342; see also Kenneth J. Arrow, The Limits of Organisation (New York: Norton, 1974), p. 25. 45. See Albert O. Hirschmann, Exit, Voice and Loyalty (Cambridge, Mass.: Harvard University Press, 1970). 46. The analysis of authority by Richard Sennet is carried out in a similar vein: it focuses on affective motivations. Authority is for Sennet an emotional bound that is established between unequals, while fraternityto which Sennet intends to dedicate another bookis a bound between equals. See Richard Sennet, Authority (London: Seeker and Warburg, 1980). 47. See Robert Nozick, Anarchy, State and Utopia (Cambridge, Mass.: Harvard University Press, 1974). 48. See Henry J. McCloskey, A Note on Utilitarian Punishment, Mind, (72) (1963), p. 599. 49. Robert Nozick, Anarchy, State and Utopia, op.cit., p. 32. 50. Ibid., p. 226 n. 51. John Rawls, A Theory of Justice, op.cit., p. 302. 52. John R. Lucas, On Justice, (Oxford: Oxford University Press, 1980), p. 187. 53. Raymond Boudon, Effets pervers et ordre social (Paris: P.U.F., 1977) ch.5; for a presentation in English of the outline of the argument, see Raymond Boudon, A Sociologist looks at RawlsTheory of Justice, Contemporary Sociology, 5 (1976) n.2, pp. 102-109. 54. John Rawls A Kantian Conception of Equality, op.cit., p. 97. 55. Ibid., pp. 95 ff. 56. See John Rawls, Kantian Constructivism in Moral Theory, op.cit. 57. See Blaise Pascal, Penses, in Oeuvres Compltes, ed. J. Chavelier (Paris: Bibliothque de la Pliade, 1954), 230, p. 1149: On ne voit rien de juste ou dinjuste qui ne change de qualit en changeant de climat. Trois degrs dlvation du ple renversent toute la jurisprudence; un meridien dcide de la verit; en peu dannes de possession, les lois fondamentales changent; le droit a ses poques; lentre de Saturne au Lion nous marque lorigine dun tel crime. Plaisante justice quune rivire borne!.
See John Rawls, A Theory of Justice, op.cit., pp. 243 ff. and passim.

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