hard to do, but there is something in the attempt: better to be a pig satisfied than a philosopher unsatisfied, or not — Constance

That's a Mill quote, not Bentham.

But your approach is apophatic. This leads you to foundational things. Do no harm is THE defeasible default principle. It is arrived at, not in the complexities that stir the pot of ethical issues; there is nothing apophatic about this. After all of the "not this, nor that's" of apophatic reduction, do no harm is simply what is left. 'Harm" is exceedingly general, but it covers all possibilities for what justice COULD BE about. No harm in the balance, then no issue of a justice nature. — Constance

The harm principle is an important principle, but there are a number of problems with it. First it is overdetermined. If every harm done was unjust, then self defense would be unjust. However, in many legal systems (All I now of in fact) self defense serves as a justification, not only as an excuse. So some harm must be just.

Then again, it is also underdetermined, because sometimes one's action (or inaction) might not directly cause harm, but are still considered unjust. You do no harm when you do not save a drowning child because her drowning is not caused by you, but we might hold you acountable for not aiding nonetheless. This is more controversial, but I think it is relatively uncontroversial to think that when you can prevevent big damage by sacrificing very little one ought to do so.

You might well end up with the harm principle as an important principle after you complete your via negativa, but it is not the bedrock of justice, unless you define it so broadly that it totally covers justice. (envery injustice is harm and every harm is injuctice, that renders the principle meaningless).

These are absolutes. One does not argue about love being good. It always, already is. This means that it survives apophatic inquiry, the kind of weeding out what isn't necessary, or is merely accidental. Love cannot be bad. It is as impossible as a logical contradiction. — Constance

I like the inclusion of love, that draws us to the analogy of love and law. So, is there something loving about law? I think there is, but that is difficult to articulate. Staying on the path of the negative, law is not love, but is it then a kind of love, what relationship may there be between the two?

So we need not resort to silence, but might instead engage in a conversation, while keeping in mind the answer to Tolstoy's three questions. — Banno

Your post rearticulates what I am after very well. Thanks for that. So, justice has something to do with conversation... Perhaps it has to do with openness. Indeed justice is the 'right to challenge' perhaps. With that I mean there should always be an opportunity to explain one's actions. Justice is not a conversation, otherwise we would at an impasse though, we just scream yes and no to each other. But indeed it might have a conversational element. What could it be and how could we find out?

Perhaps. But it should be considered that in respect of both theology and metaphysics, there is (ostensibly at least) an over-arching framework - that of classical and traditional theology and metaphysics. And that in turn embodies further principles such as 'natural law' theory. But from the perspective of today's culture much of that framework is regarded as reactionary or at best archaic. So the question arises, could there be such a conception as natural law set against the backdrop of the supposedly mechanistic picture of the universe that secular culture envisages? — Wayfarer

In law we have frameworks as well. However, many articultate positve frameworks in the sense of rights. Currently we see this discourse crop up everywhere, rights of future generations, rights for natural entitities and so on. These rights are heavily dependent on natural law theory actuially. I am not convinced. I hold rights to be ontologically a leap of faith, practically dependent on a legal order that upholds your rights anyway and ethically an inherently agonistic conception of the relations between people. My 'via negativa' idea stems from dissatisfaction with the framework of (fundamental) rights that is currently so ubiquitously employed.

I actually think we are moving in the opposite direction to what you suggest. It's much more productive to cultivate a good disposition and attitude in a person, and encourage one to behave virtuously, then to try and name, and outlaw, all the things which are apprehended as bad. This is because the person who is inclined to do bad things will continue to find more, no matter how many things you name and outlaw, while culturing one toward a good disposition only requires a general idea of what constitutes a good attitude, and the will to cultivate this. — Metaphysician Undercover

Perhaps, I am also not arguing for more thorough criminalization. However, is cultivating the right disposition just? It might be, but are we not crowding out a virtue that we like to cultivate, namely autonomy? I agree that this may well be a way forward and is a fundamentally different approach from a rights based approach, but leads to further questions of justice, who does the cultivating, to what end and is there or should there be a way for the individual to escape cultivation or at least object to it?

This is interesting. I've seen similar reductionist approaches to describing "truth" in Zen Buddhism. Even among Western world figures such as Eckhart Tolle and Alan Watts. I would enjoy reading more of your writings. Thank you for bringing this perspective to my attention. — Bret Bernhoft

Thank you, I will look into the names you mentioned. I only heard about Eckhart Tolle...

Suppose I love murder?

Not trying to be difficult here, but the idea that there is universal agreement on what is good (or not good as the OP suggests) and we just need to talk it out to see what it is so we can arrive at this naturally understood goodness necessarily assumes Attila the Hun and Adolph Hitler don't get a seat at the brainstorm session. On what basis do we exclude them?

That is to say, I have no doubt we, educated Westerners positioned in 2022 could all find some common ground regarding the ethics du jour, but that's as far as we'd get. The question would remain how we'd have confidence that our justice is true justice, and more meta-ethically whether speaking of True justice makes sense. — Hanover

Well, I am not suggesting a good conversation will solve it all, I am suggesting a roundabout way of doing legal theory or ethics. I think there is a lot of light between "Atilla the Hun and Adolf Hitler do not get a seat at the table" and "(only) educated westerners can find common ground". I doubt both. Even Hitler thought his crimes needed justification, so he recognized them not being clearly just. Moreover, I think we westerners will find that we actually share a lot of assumptions and intuitions with people from other cultures. It is not like we cross the border and suddenly people do not recognize the bonds of family anymore, or feel that every other day people above 40 years old should be subjected to heinously painful treatment. Sure customs differ and things we may hold to be unjust, others do not and vice versa, but usually the moral frameworks of others are recognizable as such. We debate moral question. Relativzing all ethical sensibility is I think impossible, it would make your judgment of your own acts or the acts of others arbitrary. I think in practice such arbitariness cannot be sustained.

"Regarding a rasha, a Hebrew term for the hopelessly wicked, the Talmud clearly states: mitzvah lisnoso—one is obligated to hate him." — Hanover

This indeed is interesting. So loving at least according to this tradition, is not always just. Hatred might be just, albeit under very rare conditions. So justice, we may say, is not universal love. Nor is it in the systems of criminal law I have knowledge of. This would be the way of the negative, articulating what it is not. However each candidate shows an aspect of justice nonetheless.

Perhaps, I am also not arguing for more thorough criminalization. However, is cultivating the right disposition just? It might be, but are we not crowding out a virtue that we like to cultivate, namely autonomy? I agree that this may well be a way forward and is a fundamentally different approach from a rights based approach, but leads to further questions of justice, who does the cultivating, to what end and is there or should there be a way for the individual to escape cultivation or at least object to it? — Tobias

I don't know if "autonomy" is the appropriate word here. Each and every one of us depends on others in some way or another. We were born into some sort of family, and as children we were dependent on adults. That's why there is fundamentally no escape from cultivation. We are mammals, and mammals exist in such a way that the young are dependent on the mothers, and the young learn from the adults. We cannot escape from cultivation, but it appears natural that children object to authority in one way or another, from time to time, and that might be part of the evolutionary process.

Maybe as we grow up, we earn our independence, and we could have proper "autonomy" as a loner, or a hermit or something, but I really don't think this to be a virtue which we would seek to cultivate.

Consider the way Socrates described "just" in Plato's Republic. It's a situation where everyone tends to mind one's own business without interfering with others. It's a just State, which allows that each person has a place, one's own unique role to play, and the person is capable of doing this without interfering with the role of another. Notice that there is a sort of personal autonomy here, in the sense that one is free to do one's own thing, but at the same time, "one's own thing" is defined, or constrained by the stipulations of the State, which ensures that "one's own thing" doesn't interfere with others, who are equally free to do one's own thing. What defines "one's own thing" in this way, is that the person is playing a productive role, as a part of a larger whole, the State. When the person is playing a productive role, then by definition, the person is not interfering with others.

From this perspective, cultivating the right disposition is what defines "just". It's not a matter of telling a person you must do this, or you cannot do that, it's just a matter of letting the person know that everyone is free to do whatever anyone wants to do, so long as everyone chooses wisely. So cultivation is geared toward directing the person as to how to consistently make wise decisions in such matters.

From this perspective, cultivating the right disposition is what defines "just". It's not a matter of telling a person you must do this, or you cannot do that, it's just a matter of letting the person know that everyone is free to do whatever anyone wants to do, so long as everyone chooses wisely. So cultivation is geared toward directing the person as to how to consistently make wise decisions in such matters. — Metaphysician Undercover

Yes, I agree, but the problem lies with the 'choosing wisely'. Not everyone will do so and with what methods and means may the state create a role for you. That was the idea of Plato's republic and of the Greek ieal of justice in general. So justice cannot be prescribing everyone their role, but also not leaving everyone free to choose without guidance. So justice contains some guarantee of education geared towards civic duty in your view? It must on the other hand also create some exit option, there should be a choice, wise or unwise, otherwise we have no real choice. I think this is meant by modern notions of autonony.

So justice contains some guarantee of education geared towards civic duty in your view? — Tobias

Such an education is unavoidable. It's part of growing up, as the difference between a baby and an adult. The younger the baby, the more real is the difference between the authority of the adult, and the open mind of the child. As I said above, it's a big feature of being a mammal, being taught by the parent or parents. The baby's dependence on the adult makes the bay naturally geared toward accepting civic duty into one's mental disposition.

Not everyone will do so and with what methods and means may the state create a role for you. — Tobias

I don't think it's a matter of the state creating a role for you, it's more like you create a role for yourself (free will), knowing from your learning experience what type of role will give you a satisfactory sort of living. And you know from your learning experience that to step outside the bounds of authority will likely cause hardship to you.

It must on the other hand also create some exit option, there should be a choice, wise or unwise, otherwise we have no real choice. I think this is meant by modern notions of autonony. — Tobias

Yes, of course "exit" is always an option, I think I sort of explained it above. I believe it's a key aspect of evolution. For the baby, to exit is certain death, and this cannot be called a wise choice. At a later age, exit and continued life, is a real possibility, like the hermit. But by that time the person has already been educated, and there is some wisdom in that choice, depending on one's societal conditions. But it's impossible to erase what one has already learned, so that exit is not a complete, or an absolute exit, like the baby's exit would be. Through meditation, reflection, introspection, skepticism, and other such practises, one might strive to erase what one has already learned, and substitute.

Sometimes harm is needed for the greater good. — Tobias

:lol:

The harm principle is an important principle, but there are a number of problems with it. First it is overdetermined. If every harm done was unjust, then self defense would be unjust. However, in many legal systems (All I now of in fact) self defense serves as a justification, not only as an excuse. So some harm must be just.

Then again, it is also underdetermined, because sometimes one's action (or inaction) might not directly cause harm, but are still considered unjust. You do no harm when you do not save a drowning child because her drowning is not caused by you, but we might hold you acountable for not aiding nonetheless. This is more controversial, but I think it is relatively uncontroversial to think that when you can prevevent big damage by sacrificing very little one ought to do so.

You might well end up with the harm principle as an important principle after you complete your via negativa, but it is not the bedrock of justice, unless you define it so broadly that it totally covers justice. (envery injustice is harm and every harm is injuctice, that renders the principle meaningless). — Tobias

Do no harm IS general and nondescript. It is also the default defeasible position of ethical/just actions. IF you are looking to cancel over and under determination, then you will have to do away with principle making altogether, for principles are essentially general, dismissing the accidental features of a particular case. This is the final stopping place for apophatic inquiry about ethics, and all things, really (which is why it is relevant to religious enlightenment). But you're right, it really doesn't take one to a place where theory can move forward, that is, unless one is interested in looking at the affective underpinning of ethics/justice.

Apopahtic inquiries work like dialectics: what IS the case plays against what is not, and from this something emerges (unless you're a Hindu or the like; then "nothing" "emerges"). An innocent man is put in prison, and this is unjust. See what Strawson has to say about this: there is that collective resentment that responds to this. Is this the kind of thing you are looking for?

I see no real difference between ethical issues and those of justice. The latter rests on the same values, the same principles essentially the same arguments; the only difference is the context, that is, issues of justice are often involved with legal entanglements.

Not clear about doing no harm by not saving a drowning child because the drowning was not one's doing. Holding one accountable for harm and that one doing harm have no discernable difference regarding ethics/justice. Why else accountable?

I like the inclusion of love, that draws us to the analogy of love and law. So, is there something loving about law? I think there is, but that is difficult to articulate. Staying on the path of the negative, law is not love, but is it then a kind of love, what relationship may there be between the two? — Tobias

Love, empathy, compassion, on the positive side; then resentment on the negative side. These are affective, not argumentative. Interesting, the dialectical interplay here: we are livid that a woman, say, strangled her child, but then the case comes out and we find she was severely mentally ill. The resentment lingers, but there is no one to pin it to, and we are forced to relegate it to the amoral, "ajudicial" bin of natural events where resentment sits, "unconsummated" if you will. The dialectic: anger, a sentiment well grounded and established in the collective regard for such things, then meets its nemesis, a failed justification. But the anger is repressed, collectively, and we do not appreciate this. We want, so it goes, Justice! there is no synthetic resolution here, and we all just have to live with this, the rotten things happening to good people. This is part of our foundational ethical relation with the world. We are ethical being, but the world is not ethical at all.
Even the most heinous criminal behavior loses its connection to justified resentment when the the cards are genuinely played out, and motivations replace freedom.

Yes, I agree, but the problem lies with the 'choosing wisely'. Not everyone will do so and with what methods and means may the state create a role for you. — Tobias

Sometimes harm is needed for the greater good. — Tobias

The concept of Justice arises from the ubiquity of harm. Because choice will in most cases be tainted by self-interest and other factors peculiar to individuals, it must, in order to be just, be delegated to an intelligence which isn't human, and which selects according to prescribed standards which promote the most fundamental of human urges, which is representative of virtually all of us regardless of circumstances, culture, education, etc.--survival.

Instead of Rawls' suggested starting point for a theory of justice, then, it would be better to consider a Doomsday scenario, like the one described so well here (sorry about the ads):

https://www.youtube.com/watch?v=mzddAYYDZkk

No offense judges, but in my humble opinion, the police should be better paid than you gavel-wielding madcaps. An ounce of prevention is worth a pound of cure.

Minority Report (2002)

Only a fraction of all cases brought before the judiciary are criminal cases...