THE JUS GENTIUM EXPLAINS CRUELTY AND ITS CAUSES.

Daniel J. Hunter1

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I. Introduction

Several problems arise for the traditional Western liberal political philosophy in my multicultural upper level Applied Ethics course. 2 The editors of my textbook included authors who reject basic principles of our democratic society. For example, Claude Ake, a socialist in Africa, sees Western rights as uninteresting to those who are hungry and too individualistic for those who live in tribes where the tribe takes precedence over the individual. 3 Secondly, an article by Sudanese professor, Abdullahi Ahmed An- Na'im, shows how the Western concepts of rights conflict with the theology of Islam and specifically with the laws in Sudan which limit the rights of women, non-Muslims, and consider apostasy a capital crime. 4 Can there ever be a rapprochement between Islam and liberal democracy? Thirdly, how do we explain the cruelty shown to women in Iran by the fundamentalists described by Professor Tohidi's article. Also, is Tohidi's call for a separation between Church and State possible in an Islamic nation? 5 Is it a trademark of Islam or uneducated fundamentalist Iranians to act so cruelly? The fourth example comes from an article which sets forth a defense of late-term abortions in China. Is this a sign of basic cruelty towards women in China? 6 The Communist defense is based of course on the primacy of the right of the state to control population over the individual right of the woman and her husband to have more than one child.

Finally, the world-wide abuse of women by men is deplored in two articles in our text. Charlotte Bunch says there are "many ways in which being female is life-threatening" and "[t]he most pervasive violation of females is violence against women . . ."7 The second article by Karen Warren repudiates "abstract individualism" and stresses that history and social contexts define us, and "feminism must be a 'solidarity movement' based on shared beliefs," and not a unity in "shared victimization. 8 Why do not all nations see the intrinsic equality between men and women? Is our view merely a Western cultural viewpoint which is not transnational?

I summarize these ideas as follows:

  1. Is tribal solidarity with diminished individual rights just and moral?

  2. Why do men in many societies inflict so much cruelty on women?

  3. Is Western liberalism, which was able to unite disparate religions within its domestic political systems, going to be able to influence systems such as Islam to accept more Western human rights; or rather, are these systems totally incompatible with democratic liberalism?

  4. Why does the government of China insist denying rights to its citizens, especially, on the serious matter of child birth?

I propose the use of the jus gentium, the law of peoples, to search for transcultural answers to these problems. I have found John Rawls recent work on this topic helpful. In the next section I will examine John Rawls' use of the law of peoples in political philosophy and then show how his system treats of the most serious question of how to tolerate nonliberal societies but is not designed to handle questions of male cruelty or tribal justice.

II. Rawls, the ecumenical political philosopher.

John Rawls in his Oxford Amnesty Lecture "The Law of Peoples" presented his theory of the jus gentium and international affairs. 9 Subsequently, in November of 1995, Stanley Hoffmann reviewed and evaluated this important lecture.10 Hoffmann indicated that Rawls' limitations on the universal applicability of his Law of Peoples restricted the use of hi s well-known ideas of justice as fairness and had disappointed some of his devoted followers who were looking for the universability of liberal concepts of justice.ll However, I will set forth in this paper another interpretation stressing the value of Rawls' lecture rests precisely on these very restrictions.

Central to the political philosophy of Rawls is the notion of toleration. He brings to this word a meaning perhaps better rendered as "respect." He wants to know, how the world of nations can live respectfully together. He demonstrates in this lecture that respect must be a foundation of any international political philosophy which is truly liberal. The hard question he poses is how a liberal society can tolerate nonliberal societies. A liberal society need not defend dictatorships but it must recognize that there are other reasonable orderings of society which are nonliberal. He recognizes two kinds of political societies: the first kind is a well-ordered liberal societies. The second kind, hierarchical, is also well-ordered. By hierarchical and well ordered Rawls means that there are nonliberal societies that would accept the same political principles as liberal societies and are not unreasonable. This is respect.

Rawls has restricted his concept of justice to accommodate these nondemocratic states. His famous principle of distributive justice, the difference principle, while appropriate for domestic liberal societies would not apply in the international realm. Too, Rawls list of liberties does not contain a full-blown freedom of conscience but only "a certain" freedom. While this limiting of principles and freedoms appears "skimpy" to Hoffmann,l2 I believe it is basic to the respectful and tolerant position of Rawls. Rawls, in addition to limiting these two items, has always limited the extent and applicability of his theories thereby limiting pseudo-universability of his thought. He says he "covers only political values and not all of life." 13 He knows that this makes his theory vulnerable to the challenge of being ethnocentric or "historicist" and limited to only liberal societies. Thus the need for this work on the Law of Peoples.14 The applicability of his theories he shows to be limited also by types of associations. His theory does not apply to churches, for instance.l5 By specifically not applying liberal democratic political principles to churches he shows respect for these associations wherein liberal political institutions such as popular elections, due pr ocess, etc., need not apply.

Finally, he indicates that different principles apply for different associations not just because one association is larger than another--mere aggregations. Different principles are necessary for the family than for a constitutional democracy because of the distinct structure of each and its appropriate role or purpose of its various parts.16

To summarize Rawls' position:

  1. His Law of Peoples is a Kantian construction using constitutional democracy as the form of liberal political society to find principles to apply not only to liberal societies but also to hierarchical ones.

  2. His Law of Peoples does not apply to families, churches and other associations in the domestic society.

  3. His Law of Peoples is applied to hierarchical societies using the principle of toleration. An effect of extending this principle is that criteria of reasonableness are relaxed. However, these criteria are never relaxed so as to include dictators or rulers such as those during the War of Religions.17

It is this concept of extending toleration and relaxing requirements which so disturbs his followers. Yet as one who has participated in the ecumenical dialogue between churches, the Rawls way is the only way: search for similarities first and show respect.

Rawls' Law of Peoples does not discuss tribes nor male cruelty which do not pertain to well-ordered societies as defined by him.

With regard to the question of Islam and liberal democracy I agree with his concept of tolerance which leaves the way open for such a society to adopt just a few basic liberal positions. This is enough. There is no easy answer to the ultimate question of the incompatibility of Islamic regimes with Western liberalism. A religion like Islam may need to have a bona fide holy man or woman appear who can cause the necessary changes in culture and belief. Thus I do not believe that Professor Tohidi's demand that an Islamic society embrace the separation of church and state to be feasible. Western liberal political philosophy will never offer to a strict religious society a list of human rights to be observed. God will provide such a list.

However, there is another way to understand the jus gentium which does get to Questions 1 & 2 because it deals with prerational societies.

III. Jus gentium and Pre-rational societies.

Rawls abstracts away from many particulars of the individual in a democratic society to develop his theory of the Law of Peoples. Onora O'Neill states that abstraction is "basic to all use of language and theory, and it is indispensable to all communication that succeeds in the face of disagreement.18 Of course the scholastics had a cliche for this process: Abstrahtium non est mendacium. There was no lie in abstraction because it was mere apprehension and as such did not make a judgement, the source of error for them. Nonetheless, Rawls leaves behind individual characteristics and focusses on elements which define a liberal constitutional democracy with justice as fairness the central theme. The result is that he produced the finest political philosophy of recent times. In his Law of Peoples he uses the jus gentium to support this abstract concept in the international arena. He correctly distinguishes his Law of Peoples from international law which is a classical separation supported by all. However, in using the jus gentium in this manner he does not deal with the family nor corporate social units such as the market and business. The family and corporate social units are not as rational as Rawls' democratic society. To help further understanding of these other groups I use the jus gentium, but in the reverse manner of Rawls. I seek principles of justice in prerational, concrete and historical groups. I will not review all of the uses of jus gentium. It is not necessary, as Suárez, the sixteenth century theologian-philosopher, tells us that he read everything he could on the jus gentium and came up with the following definitions:

Jus gentium is:

  1. the law "between" all peoples and various nations which ought to be observed. ( . . . inter se . . . ).

  2. the law which individual cities or kingdoms observe "within" their own cities or kingdoms. ( . . . intra se . . . ) l9

Suárez teaches that the first definition is the better one because it distinguishes better the jus gentium from civil law. Thus this first concept of the jus gentium leads us to look behind the existing laws to find other principles.

IV. Aristotle without Essentialism.

In the first book of the Politics Aristotle sets forth the principles of his communities. 20 But before going to the text of Aristotle it is necessary to discuss the issue of essentialism in Aristotle which has its detractors and defenders. Martha Nussbaum has defended Aristotelian Essentialism in a manner which I believe is not necessary for an Aristotelian ethics. 21 I prefer the answer of Jonathan Lear who has devoted a large section of his book on Aristotle to explain the ancient Greek philosopher's notion of substance. Lear has a subtle and complex argument which holds that Aristotle's concept of substance developed over time. 22 He agrees with this new theory for it helps to explain apparent contradictions in the text of Aristotle concerning substance. Lear however warns those of us who read Aristotle in translation that the available translations do not reflect this new theory about Aristotle's changing notion of primary substance. Thus for Lear substance while it is a central concept in Aristotle is not easily understood. When Lear treats of Aristotle's Ethics he handles a standard objection against Aristotle's concept of nature as stated by Bernard Williams. Lear states the objection:

Some modern philosophers [he refers to Williams in a note] have complained that Aristotle's ethics rests on an outdated metaphysical biology: men do not have essences or natures, and so ethics cannot be founded on the fulfillment of one's nature. 23

Lear's response:

This . . . overlooks what is essential to Aristotelian essentialism, at least for an ethical theory. An ethical theory . . . Aristotelian in inspiration need only believe that there are ways in which human beings can flourish which are recognizably ethical. One need only believe that human life is distinctive and potentially worthwhile; that there are certain ways of living that are fulfilling and rich and others that are degrading an deprived; that there are ways of living a cooperative, ethical life within society that are fulfilling and rich. This much it is possible to believe, for this much, I believe,is true. 24

Notice that Lear does not require a belief in substance. What one need say as an Aristotelian is that substance is not the first thing we know, and that we do not know the difference between the sensible and the intellectual without complex reasoning. We should not be surprised by this because in the time of Aristotle the Pre- Socratics did believe there was a distinction between substance and accident. 25

V. Aristotle's Politics.

Any teacher introducing her students to Aristotle's Politics must put out a disclaimer. Parts of the Politics are wrong on slavery, the nature of the family, the role of women, and democracy. This is the short list. Nonetheless, I believe that it is in the opening of this work that Aristotle gives the answer to our original questions. Aristotle says that first association to be formed by men and women was the family to supply everyday wants. This association is natural for Aristotle and follows from the fact that the individuals cannot exist without each other and this union. He says, that the village is next to be formed to attain to goods beyond the supply of daily needs. This is a colony formed from the family. The form of rule is patriarchical for the eldest tend to rule in colonies formed from the family. Kings are the common leader of these groups. There is here the sameness of the blood of the family throughout the colony. Blood and family mark this association. Next comes the state a unity of several villages which originates in the bare necessities of life and continues for the good life. The state unites those of different families and tribes.

This is the basic structures of Aristotle's natural societies. To be isolated outside of society is to be a lover of war: "tribeless, lawless, heartless" denounced by Homer. However, men and women differ from other animals in the power speech which she uses to set forth the just and the unjust. Men and women have a sense of good and evil, of just and unjust, and the association of living beings with this sense makes a family and a state.

Aristotle praises the person who first founded the state. For men and women are the best of animals when perfected in the state. However, when they are separated from law and justice, men and women are the worst of all. The effects of being without law and justice are that "he is the most unholy and the most savage of animals, and the most full of lust and gluttony.26

Thus for Aristotle, pre-rational groups of men and women can have some forms of justice sufficient for the family and the tribal villages. Yet they are cruel lascivious savages. Here is the explanation of our questions. Tribal solidarity will not of itself provide the fullness of justice, but the families and tribes have justice for their own groups. Moreover, the typical form of government is patriarchal. The lasciviousness that Catharine MacKinnon finds throughout the Bosnian rape trials is one characteristic of these pre-rational tribal groups like the Serbs. What is paradoxical here is that these groups have forms of justice too. Thus the French Revolution was carried out by peasants inflamed by the sense of injustices of the aristocracy. In the slaughter of the aristocracy the injustices were avenged.

V. Conclusion

First, Ake is correct. Pre-rational groups such as his tribes are based on solidarity within families. Their needs are the needs for which the family is formed: food, shelter, and security. The individual does not see herself as separate from her family. She is united by blood. It will take the presence of the state for her to see other relationships of the citizen. As a socialist, Ake, of course, reflects Marx' preference for the group, the community, the state over the individual.

Men's cruelty towards women is harder to explain. This cruelty when combined with lust is the way men view women outside of their tribes, for example, the rape of Croats by Serbs; the rape of Bosnian women by Serbs. The scenes of Serbian soldiers reading pornographic magazines aboard their military vehicles is the epitome of the lascivious soldier of tribal armies. According to MacKinnnon, "Yugoslavia's pornography marked was the 'freest in the world' before this male population was . . . mobilized to commit the atrocities they had already been sexually conditioned to enjoy.27

China's cruelty is seen as the actions of a people who have been captured by the primacy of the family. Older men rule without compassion for the benefit of the tribe. Patriarchy is just as cruel towards women as the feminists tell us.

Endnotes

  1. I teach Applied Ethics and Business Ethics at Arizona State University West in the Department of Integrative Studies, Phoenix, Arizona.

  2. In my course I use the text Applied Ethics A Multicultural Approach, ed. Larry May and Shari Collins Sharratt (Englewood Cliffs, NJ: Prentice Hall, 1994). [Hereinafter referred to as Applied Ethics.]

  3. Claude Ake, "The African Context of Human Rights," reprinted in Applied Ethics, 35-40.

  4. Abdullahi Ahmed An-Nai'im, "Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights," reprinted in Applied Ethics, 51-59.

  5. Nayereh Tohidi, "Gender and Islamic Fundamentalism: Feminist Politics in Iran," reprinted in Applied Ethics, 306-314.

  6. Ren-Zong Qiu, Chun-Zhi Wang and Yuan Gu, "Can Late Abortion Be Ethically Justified?," reprinted in Applied Ethics, 471-476.

  7. Charlotte Bunch, "Women's Rights as Human Rights," reprinted in Applied Ethics, 41-50.

  8. Karen J. Warren, "The Power and the Promise of Ecological Feminism," reprinted in Applied Ethics, 115-122, 118.

  9. John Rawls, "The Law of Peoples," in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 4182, 220-30. Rawls had outlined his ideas elsewhere, see, e.g, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 378.

  10. Stanley Hoffmann, "Dreams of a Just World," The New York Review, ( 2 November, 1995) 52-56.

  11. See Fernando R. Tesón, "The Rawlsian Theory of International Law,"9 Ethics & International Affairs, 1995, 79-99. Tesón sees two John Rawlses: one, the universalistic author of A Theory of Justice; and the second Rawls in "The Law of Peoples" is more relativistic and does not ground rights in a universal concept of human dignity. id at 98.

  12. id at 54.

  13. id at 44.

  14. id at 47. In this passage Rawls sounds like Aristotle in the opening book of the Politics.

  15. id at 78.

  16. Onora O'Neill, "Ethical Reasoning and Ideological Pluralism." Ethics 98 (July, 1988), 705-722., 711.

  17. "Duobus modis (quantum ex Isidoro, et aliis iuribus, et auctoribus colligo) dici aliquid de iure gentium: uno modo quia est ius, quod omnes populi, et gentes variae inter se servare debent; alio modo quia est ius, quod singulae civitates, vel regna intra se observant; per similitudinem autem, et convenientiam ius gentium appellatur. Prior modus videtur mihi propriissime continere ius gentium re ipsa distinctum a iure civili, prout explicuimus." Francisco Suárez, De legibus, Lib. II, c. 19, n.8. in Johannes Messner, Social Ethics, trans. J. J. Doherty, rev. ed., (St. Louis: B. Herder Book Co., 1965), 282.

  18. See Aristotle, Politics, trans. Benjamin Jowett, Introduction to Aristotle, ed. Richard McKeon, (New York: Modern Library, 1947), 553-617.

  19. See Martha Nussbaum, "Social Justice and Universalism: In Defense of an Aristotelian Account of Human Functioning, 90 Modern Philology, May, 1993, Supp S46-S73.

  20. Jonathan Lear, Aristotle the desire to understand, ( New York: Cambridge University Press: 1988), 265.

  21. id at 191.

  22. id

  23. For a definitive statement of the epistemology of both Aristotle and Aquinas, esp., on their understanding of the primacy of real relations in ethical knowing see the Thomistic study by Ralph Powell Freely Chosen Reality. (Washington, D.C., University of American Press, 1983), 11-24.

  24. id at 557

  25. Catherine A. Mackinnon, "Crimes of War, Crimes of Peace," in On Human Rights, 83-109, 230-244, 108.

    Copyright Daniel J. Hunter

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