27 February 2013

Justice and Liberal Democracies

Written by 
Agnes Heller, Hungarian-American philosopher, Hannah Arendt Visiting Professor of Philosophy and Political Science at the New School for Social Research, New York. Agnes Heller, Hungarian-American philosopher, Hannah Arendt Visiting Professor of Philosophy and Political Science at the New School for Social Research, New York. http://www.huffingtonpost.it/2012/12/10/la-filosofa-agnes-heller-_n_2272158.mwo4ml

This may seem like a boring title, but it speaks directly to the instability, turmoil and even violence that flagship states Tunisia and Egypt are experiencing two years after their “revolutions.” Mounting distrust between the two islamist regimes and their secular opposition parties has so widened this decades-long divide that it now threatens the very survival of their democratic institutions.

At stake is the viability of a religious-secular dialog that seems to be the only means to assure a peaceful transition from decades of autocratic rule responsible for egregious violations of human rights to some form of “liberal democracy.” This is the first of three blogs on justice, which follow a trimmed-down version of the lectures I presented in Singapore in January 2013.

John Rawls’ classic statement of political justice

 By far the most influential scholar in political philosophy in the second half of the twentieth century was the Harvard and Oxford professor John Rawls (d. 2002). His classic book, A Theory of Justice (1971), set the tone for all future discussions. Still, his many critics had mounted such good arguments that he responded to several of them in his 1993 book, Political Liberalism. Allow me to briefly summarize the issues involved.

Rawls is famous for defining justice as “fairness.” A state makes a covenant, a compact with its citizens to treat them as equally and fairly as possible. This is a social contract approach, meant to bring about the good of all citizens. To achieve this, he resorts to his idea of a “veil of ignorance”: let’s posit a group of citizens, he says, who somehow are able to blank out their own class, religious and ethnic conditions and values, and make together rational decisions about the good of the whole. This hypothetical condition then enables them to define together in a disinterested way what the “good life” might be for their society. He then argues that they would agree to this two-fold proposition:

(1) Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

(2) Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.

This “basic liberty,” as he defines it, includes “freedom of thought and conscience, freedom of association, the right to representative government, the right to form and join political parties, the right to personal property, and the rights and liberties necessary to secure the rule of law.” But it excludes economic rights, unlike what is stipulated in one of the two UN covenants that form the International Bill of Rights, the International Covenant on Economic, Social and Cultural Rights (the other being the International Covenant on Civil and Political Rights – both came into force in 1976).

But let it be said too that both communism and pure laissez-faire capitalism are unjust, in that they either rob people of their freedoms or leave whole swaths of the population without equal access to society’s resources (starting with education), and thus depriving them of the means to compete fairly for the positions they may aspire to.

In a series of lectures published in 1993 under the title Political Liberalism Rawls set out to answer several of his critics’ points, and especially this one:

“How is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?” (p. 4)

So Rawls, years after offering a basic framework for looking at justice as fairness (A Theory of Justice), is now trying to define what he means by justice in a political context. He now recognizes that the gulf between holders of different religious convictions and political ideologies is wider than he once thought. One of the concepts that he uses turns out to be very relevant for seeing how more traditional Muslims might function in a liberal state. It’s the idea of an “overlapping consensus” – that is, though subscribing to different “religious, philosophical, and moral doctrines,” citizens could agree on some common values.

This is exactly what University of Toronto law professor Mohammad Fadel does in a 2012 article on “Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy." His starting point is a recent ruling by the European Court of Human Rights (ECHR) on the basis of three cases involving Muslim claimants, which gives member states the opportunity to discriminate against Muslims because, it has decided, Islam at its core is incompatible with liberal democracy. In order to refute that position Fadel uses the writings of two reformist Muslim scholars on the issue of women and politics. In the process he refers to Rawls concept of “overlapping consensus”:


“In the Rawlsian account, an overlapping consensus exists when a majority of the politically active citizens of a society endorse, for reasons they individually consider morally compelling (even if such reasons are likely to be in fact philosophically incompatible), the constitutional essentials of the well-ordered society. An overlapping consensus is distinct from a modus vivendi in so far as in the latter, political stability derives solely from a contingent balance of power” (p. 4).


What he means by “modus vivendi” is that these people submit to the constitution only because they are forced to do so. But if their party were to gain power, they would do everything possible to change the constitution. This attitude only contributes to instability, says Rawls. So if a large contingent of European Muslims swears allegiance to the political order of their respective European countries only as a tactic dictated by their present weakness in the polls, this would not constitute a genuine overlapping consensus.

Both scholars chosen by Fadel for his argument come with stellar conservative credentials – both trained at Cairo’s al-Azhar, Yusuf al-Qaradawi (I have been writing about) and Abd al-Halim Abu Shuqqa, once a disciple of the Salafi star, Nasir al-Din al-Albani (d. 1999). Both have international followings, though Qaradawi to a much greater extent, and with the added advantage of being a counselor to Muslim leaders in Europe. At the same time, both argue for the equality of men and women before the law and the permissibility of women to run for political office, while mounting a spirited critique of traditional Islamic gender norms. Hence Fadel can claim that there is no basis for the ECHR to assume that Islamic law is “stable and invariable.”

This is because, while the source of Islamic law is rooted in God’s will and therefore immutable in a theological sense, its mechanism for adapting its rules to changing societal conditions (ijtihad) also has legal and moral dimensions. Though he does not say it, Fadel is referring to the common distinction nowadays between “Shari’a” as God’s moral standards for human society and fiqh, the human interpretation of the sacred texts and their application to specific social contexts. The rulings of fiqh, therefore, not only vary from school to school, but are constantly changing, by definition.

So Rawls’ conception of justice as an ideal debated and hammered out by social agents from diverse perspectives would also provide hope for solving today’s tensions in Egypt, Tunisia and elsewhere, where the gulf between religious and secular has dramatically increased. But there is another element that is needed in this discussion, and here we are indebted to Hungarian philosopher Agnes Heller.


Justice as balancing “liberalism” and “democracy”

A prominent Marxist philosopher in her early career in Budapest, Heller’s views evolved with the 1968 Soviet invasion and she was among several who lost their university jobs. Along with other thinkers she chose exile to Australia in 1977. Then in 1986 she settled in New York City as a professor at the New School University.

Heller is also an interesting thinker, because as a young Eastern-European Jew she had to confront the Holocaust. Like many others around her she decided there was no God and chose Marxism as her “metanarrative” – that is, as a framework to explain the deeper questions of human existence. I have no idea about her present thoughts on religion, except that like others who think about the wider sociopolitical issues of today, she takes into account the fact that humanity as a whole remains religious at the core.

I ran across a 2000 article of hers while researching this topic and immediately found it compelling: “The Complexity of Justice: A Challenge to the 21st Century” (Journal of Ethical Theory and Practice, vol. 3, 3rd issue, pp. 247-62).

The two great engines of modern politics, she writes, are democracy and liberalism. Each one embodies a “substantive value,” a specific ethos, that is, each one projects an ideal that resonates with people around the world. But the problem is that they stand in tension – a creative tension that must be kept in balance, if we want to avoid either tyranny or chaos. But first, what does she mean by those two terms?

The best way to understand democracy is to contrast it with liberalism: “… personal freedom is the central value of liberalism whereas political equality is the central value of democracy. In fact, liberalism recognizes the validity of all values that can be interpreted as liberties, whereas democracy stands for the equality of those liberties” (250).

But this egalitarian ethos of democracy can lead it to persecute minorities:


“Since majority decision is the principle of just decision in a democracy unless liberal principles will also be upheld, democracy will always develop in the direction of more and more substantive regulations. For example, it will increase the tendency to cut the heads of tall poppies, that is to destroy a cultural elite if there exists one, or to prevent its emergence if it does not yet exist, it will prevent immigration and excludes different kinds of minorities from the body of the people or nation” (251).


The liberal ethos, by contrast, is not a collective one, but an individual one: personal freedom. The rule, in principle, is that personal freedom cannot be expanded if it infringes upon someone else’s freedom. “The main ethical norms of the liberal creed is independent (free) thinking, the Kantian Selbstdenken – our obligation to think with our own mind – further, the virtue of toleration and finally, that the respect to the person and his/her personal dignity” (252).

Historically, the enemies of the liberal creed in Europe were both Church and state, which was in the hands of an aristocracy. Today however, particularly in the USA, it collides with the democratic ethos: free thought for the individual often collides with the principle that the majority is always right. The liberal ethos’ greatest historical achievement was the Universal Declaration of Human Rights and the documents that followed which provided the contours of international law.

Still, the liberal creed is both a blessing and a liability: “Constitutionally guaranteed liberties established already a balance against a too substantive and totalitarian development of democracy. Interestingly, it was still the further substantive expansion of the territory of ‘rights’ that opened the way towards the increasing formalization of liberalism” (252).

Thus both the liberal and the democratic currents tend to pile up legislation and regulations to bolster their own values, which are often at cross-purposes. Justice is precisely that quality which elected officials in all three branches of government display when they sort out matters arising in a way that balances both ideals – hence, “the complexity of justice” in a democratic polity. In Heller’s words,


“If in a country at a given time democracy and liberalism are kept somehow in balance (that is, if the probability of regaining this balance is maintained) and both democracy and liberalism remain true to their substantive values – without expanding them over the other's field – this country at this time has such political institutions in the framework of which politicians will behave, if not necessarily as decent persons but at least as decent politicians, they will perform their tasks, they will live up to their responsibilities, honor the laws, irrespective of their character and motivations. As we said, more is not to be expected. But this balance between liberalism and democracy is difficult to achieve, and even more difficult to maintain” (250).


Turning the tide of self-serving “democracies”

But how can this justice be forthcoming if politicians are only interested in getting reelected, in holding on to the privileges that come with power, and thus focusing only on short term problems in their respective societies? This is a burning question not just for the Arab world or for Africa, but for the United States and everywhere else. This is how she puts the question:


“Provided that in the balance of democracy and liberalism the pendulum of modernity swings too much in one extreme direction, where are the powers that may be able to push the pendulum back so that liberalism and democracy may come again into a momentary balance? Or rather, which are those powers? Since we are speaking about the presence or absence of a democratic and a liberal ethos, the powers we have in mind must be of an ethical kind”


Leaning on the great German philosopher Hegel (d. 1831), Heller writes that for justice to be served collectively there must be synergy between three different powers: law, ethical life and morality. She tells the story of the son in Sweden who drove his father to the hospital after he had a heart attack and then to the social security office to claim his gas money for the trip! That is a good example of the dangers of over-regulation. The rule of law is necessary, but never an end in itself. The Swedish story reminds us that if “law takes care of everything, personal support, charity, magnanimity, magnificence, liberality, caring becomes obsolete.”

With regard to the ethical life perhaps the most important arena is the family. Laws can seek to clamp down on the abuse of children or domestic violence, but if love is absent in the first place, a family becomes dysfunctional and even destructive. But how do you change an abusive father? Bringing an offender to court is necessary, she agrees. But law cannot make up for a lack of ethics at the foundation of society, in the family. She explains,


“Humiliation in public is as bad as humiliation in private, it is not the compensation for the former. It is true that ethics, the power of the ethical, cannot entirely redress injustice in this field. But love is gone, trust is gone, faith is gone. It is questionable what is more worth, whether the gains make up for the losses.”


The third power is morality, the personal dimension. Though not said explicitly, she likely means that the ethical fabric of society is maintained and nourished by “good, decent people.” In her words,


“Neither the democratic ethos, nor the liberal ethos can explain why someone should be a decent, a good, a moral person, although both will insist that one must accept their ethical recipes in order to do the right thing. However, morality has an ontological priority to ethics and law. For one has to be a decent person first to ask the question: what is the right thing for me to do? Ethics answers this question, whereas law mainly tells you what you should avoid. Needless to say morality also has an ontological priority to all religions and philosophies. One can draw the strength for being (becoming) good from various sources – among them from moral philosophies, religions, or from the democratic and the liberal ethos – but what matters most, or rather what alone matters is for what purpose one is drawing one's strength” (259).


So we come to the crux of the issue: democracy, people nearly everywhere feel today, is the best framework for securing a just society, because the greatest number of citizens have a say on how they should be ruled in light of the specific constraints of their own state at the time. But democracy is only a framework. If the state moves too much in the direction of the democratic ethos, it becomes dictatorial, especially for minorities. If on the other hand, it veers too much in the direction of liberalism, chaos might ensue. What society urgently needs at its core are “good, decent and moral” people.

So what is justice in a healthy society? As Heller sees it,


“This is why and how morality takes care (or, at least, can take care) of the restoration of the balance between the ethos of liberalism and of democracy, in times when the pendulum swings too extremely into one or the other direction. Justice in this most general sense is the condition of doing justice. To keep the democratic and the liberal ethos in balance is justice in this sense. For whether the pendulum swings in the direction of one extreme or into the other – personal freedom is always curtailed” (259).


A couple of thoughts about Egypt

So how does this discussion about justice shed light on Egypt’s post-revolution, post-constitution turmoil? If anything, Egypt’s current challenges perfectly illustrate the “complexity” of “doing justice” in any state, let along one that was abruptly catapulted out of sixty years of dictatorship. And don’t forget that several key institutions set up by the former regime are still in place: their equivalent to the Supreme Court, the Ministry of the Interior (or the police forces), and the army – which still controls between 10 and 45% of the national economy!

To make things worse, President Morsi, faced as he is with a devastating economic crisis, is negotiating a $4.5 billion loan package with the International Monetary Fund. He also has to remain on the good side of the US in order to keep the yearly $2 billion in aid stipulated by the 1978 Camp David Accords brokered by President Jimmy Carter. To say that Morsi risks falling off a perilous tightrope – with little wiggle room for preserving national independence – is an understatement.

Remember too that the US constitution was written under similar post-revolutionary duress and that it took over a dozen amendments and two hundred years to make sure it protected basic human rights. Oh yes, and Britain never did write a constitution, like Egypt’s neighbor Israel.

Three quick points to close:


1. Heller’s emphasis on the importance of morality as imbedded in one’s culture is very relevant here. It can draw its strength, she writes, from “all religions and philosophies.” In fact, religion is the first candidate globally, even for the least religious places like Europe, where morality still flows from the religious legacy of the past. Egypt, by contrast, is very religious, whether you speak of Muslims or Christians (ten percent). Here sociologist Mohammed Bamyeh, an Egyptian American who happened to be spending a sabbatical in Cairo when the revolution broke out, points out the fact that the constitution, though approved by 64% of the electorate, was hastily written by the islamists, with 22 out of the 100 members of the assembly having walked out. On the my “Sociology of Islam” listserv I follow he wrote last week,


“Also we should not forget that while the constitution should ideally be based on consensus, when Egyptian voted in the largest numbers in the first free elections in their modern history, the majority chose what reflected a traditional conservative leaning in society. So what surprise is there for that constituency to want to see, quite legitimately, its own worldview strongly represented in the constitution? This obviously should not mean trampling on the rights of the minority, but a lot of the condemnations of this constitutions I have seen seem to make the opposite point: only liberal values should be upheld when they contradict some traditional conservative values, even if the former may be those of a minority or just of a bunch of intellectuals.”


2. Though the process of drafting the constitution was clearly undemocratic, the text itself, despite some illiberal articles and some dangerously vague formulations might not have been much different had all sides participated (read one Egyptian journalist’s view). It guarantees a host of personal and corporate liberties, including freedom of the press, of association, and assembly. The full rights of Christians and Jews are recognized (but for no other faiths, however); and gender equality is upheld. My point is that an effort is being made to accommodate the “liberal ethos” by seeking to protect minorities and women. Still, it clearly falls short, as another Egyptian paper points out in some detail. But perhaps it would help to compare some of its stipulations with those of its predecessor, the 1971 constitution, that was never followed in practice).


3. In the final analysis, Agnes Heller is right about the elusive nature of justice. She would say that above all Egypt needs good and decent political actors to heal the present rifts and move the process forward. Can Morsi make some credible overtures to the opposition and get both sides to work together? Justice for the people – which includes balancing the democratic and the liberal ideals – can only come from upright and courageous leaders.


I’m sure Morsi could use your prayers right now!

Egypt’s outgoing Grand Mufti Ali Gomaa is upbeat about healing his nation’s divided political forces. I’m sure Coptic Orthodox Pope Tawadros II is equally inclined, though for now he has openly criticized the present regime and its constitution. Evangelicals, it would seem, have invested more effort in negotiating with the Muslim Brotherhood. Yet despite the real tensions of the moment, over the long haul Morsi can count on the religious establishment to nudge him toward national reconciliation. After all, and to a large extent, this is a project of Muslim-Christian cooperation crucial for a whole region in which religion directly sustains the moral fiber of its society and the viability of its democratic institutions.