presumptively to the point at which morally weighty justiď¬cation is required for
the absence of the legal right. Recognition of the moral rightâ™s existence implies
a prima facie justiď¬ed demand for the rightâ™s installation in law, but there is no
converse inference from the existence of the legal right to a justiď¬ed demand for
the moral rightâ™s recognition. (The very fact that some particular lawmakers have
seen ď¬t to establish the right in law might ď¬gure for some as probative testimony to
154 Frank I. Michelman
the moral rightâ™s existence â“ why otherwise would they do it? â“ but that would be
controversial and anyway is a different question.) Thus, on the prescriptive level,
the moral right dominates or leads the constitutional-legal right; the moral right
comes ď¬rst and the legal right follows.
Such is the intuitive common view, and it suffuses advocacy on behalf of
constitutional-legal establishment of socioeconomic rights. For how, in fact, do we
typically advocate for such establishment or defend the idea against criticism? We
start, and feel we must start, by making the moral case for socioeconomic assur-
ances. If the moral case fails, we feel, the case for constitutional-legal establishment
fails a fortiori, because there are widely conceded, special institutional worries â“
about overextension of the judiciary and undue encroachment on democratic self-
government â“ that attend upon the recognition of a constitutional-legal right to,
say, housing that simply do not pertain to recognition of a moral right to housing.
The moral case for recognition can provide a platform for public complaint against
a sitting governmentâ™s failure to fulď¬ll the right it vindicates without raising the
institutional worries attendant upon a constitutional-legal right.
I think this view is basically correct. It hews to an important sense in which
the priority of morality to law stands beyond any possible doubt â“ that being the
same as the sense in which law but not morality is a politically decidable matter.
The existence or not of a constitutional-legal right to this or that is a question
for some law-making process to resolve; if the process answers no, then no it is.
(Thus, Ronald Dworkin [1996: 36] denies that American constitutional law as it
stands contains socioeconomic guarantees while âwishingâ for moral reasons that
it did.) Moral rights, by contrast, are what they are regardless of what any person,
body, or political process may say or do about them. No constitutional or other
law-making process â“ no political decision â“ can decree away a moral right that
otherwise would exist.
Is that correct? No doubt moral rights can be contingent on political choices â“
indeed, I aim here to show how a moral right to socioeconomic assurances might
be thought contingent on a prior political choice for legal ordering â“ but the point
here is that moral rights are not freely decidable by political choices. Any moral
right against infringement of a registered, proprietary patent must be contingent on
prior legislative enactment of a proprietary patent registration system. Regardless
of whatever background moral obligation there might be to enact such a system
into law, it is plain that without the actuality of such an enactment there can
be no registered patents and hence no rights against infringements of them. A
right to legislation of a patent system is one thing, a right against infringement
of a patent is another thing, and it would be a bad mistake to confuse the two in
practice â“ say, by ostracizing someone for patent infringement where no system of
patent registration exists.1 Once given the enactment of such a system, however,
the possible attachment to patents registered under it of a general, background
I claim nothing either way about the existence of a general, preinstitutional moral duty to refrain
from nonpermitted copying of your neighborâ™s techniques. That moral question plainly is distinct
from the one about a general, postinstitutional moral duty to respect a registered patent as property.
One can answer no to the ď¬rst question but yes to the second. I say simply that you canâ™t convict a
person of the latter sort of immorality in the absence of an institutionalized patent system.
Law as Premise 155
moral duty to respect property rights is no longer a matter of political choice
or decision. Lawmakers cannot control the moral consequences of the legislative
choices they make â“ except, of course, by modifying those choices. Morality is in
that way prior to law.
I raise here no question about that way of thinking. What I do wish to block is any
thought that the moral issues surrounding socioeconomic rights are necessarily
prior to law in the sense that the moral issues would or could exist in the form
they do were certain legal-institutional contingencies not as they are. I want to
show that indeed, in this instance, in the sight of many, law precedes morality
in the sense that in the absence of law â“ of legal ordering, of a legal system â“
what otherwise would ď¬gure as a decisive moral case for socioeconomic assurances
would be greatly weakened, if it would not collapse altogether. What many will
ď¬nd to be the decisive moral argument for establishing socioeconomic rights in
the law is immediately anchored, not in some morality-prior-to-law, but in what
we might call, in a bit of a twist on Lon Fuller, the morality of law. The case I have
in mind takes as given the main, contingent facts of legal ordering in our societies
and goes on from there. In saying this, I do not mean just that there (obviously) is
no point, in lawâ™s absence, in building a moral case for recognition of some right
in the law. I mean that contingencies of legal ordering serve as a premise, or call
it a sustaining cause for belief, in a certain argument for a moral right to housing,
from which the case for instigation of a legal right is then supposed to depend.
Application of the line of thought I have in mind is not necessarily limited
to socioeconomic rights; it may be extended also to so-called ď¬rst-generation or
garden-variety legal rights. It is, however, not nearly so crucial to the defense of
latter as of the former.
Take a ď¬rst-generation right, the existence and extent of which, as a legal right,
is currently contested in various countries: a right to be secure in oneâ™s home and
other off-public sites against journalistic and other privately conducted electronic
and photographic snooping. We have no trouble conceiving how this might exist
as a moral right without existing as a legal right. The case, then, would simply
be that everyone stands under a correlative moral duty to refrain from spying on
others in their homes, regardless of whether violations beget any legal-institutional
response. If the law is in fact nonresponsive, we may judge it to be morally out
of whack for that reason, but the lawâ™s default would be no impeachment of the
moral standard by which we judged it faulty.
Nor, accordingly, would the total absence of a legal system be any impeachment
of the existence of moral rights tout court or of the personal moral duties correlative
to them. In the absence of a legal system, everyone might stand under a moral duty
to collaborate actively in the establishment of a morally suitable one â“ Kant (1999:
114â“15, sec. 42) thinks so â“ but failure in the prosecution of any such morally
mandated joint venture would not release anyone from whatever personal moral
duty there may be not to spy on others in their homes. (Compare the effect of
absence of a patent registration law on personal duties not to infringe patents.)
People can have homes in the absence of a legal system, just as they can and do have
bodies (but not patents). Moral rights against unprovoked physical assault do not
lapse in the notional absence of a legal system, nor do the moral duties correlative
156 Frank I. Michelman
to such rights, and neither would the duties correlative to moral rights (if there are
such moral rights) against being spied on in oneâ™s home. As a general proposition,
the existence of a legal system seems not to be a sustaining cause for anyoneâ™s belief
in the existence of moral duties correlative to those moral rights that correspond
to garden-variety legal rights â“ or, hence, for belief in the existence of those moral
Does the same hold for rights to housing or other socioeconomic rights? There
is at least some reason to conclude that it does not. A key question here is, Which
agents bear what duties correlative to such rights? To say that everyone has a
moral right to have access to housing is to say that some agent or class of agents
stands under obligation to try (at least) to see that everyone does have it, or that
the obligation is shared out in some away among agents or agent classes. Now, it
would be extremely morally contentious to attribute the entire load of obligation
to any or every individual person. It is one thing to debate whether you or I stand
under a moral duty to take in overnight in subzero weather the homeless person
who fetches up at our doorstep. It is a very different and hugely more contentious
thing to suggest that you or I stand under a moral duty to sell everything we have,
and mortgage everything we may ever have, to have every poor person housed,
especially when others who could are not helping out at all.
Charles Fried (1978: 118â“31) and, more recently and elaborately, Liam Murphy
(2000) have shown convincingly this difference in contentiousness. They have not,
however, as some libertarians do, gone on to conclude that there can be no moral
right to housing, or any individual moral duties pertaining to such a right. There
happens to exist among us an agent â“ the government â“ capable of imposing a fair
and workable distribution among citizens of the burdens connected to fulď¬llment
of the right. It is not bizarre to claim that the government is morally bound to
do just that, or that citizens are morally bound to press it to do so and to pay
unresistingly the taxes required for fulď¬llment of the governmentâ™s obligation. I
suggested previously that any legal right to housing would likely be a public law or
constitutional-legal right, and now we see one of the reasons why. And of course
the duties and duty-bound agents incident to a public law right to housing are
all creatures of law and legal contingency: the state, its citizens, its programs,
taxes, taxpayers â“ all of them creatures of law, inconceivable in lawâ™s absence. If
so, then to speak of a moral right to housing where there is no law is an order of
magnitude more contentious than to speak of a moral right not to be assaulted or
spied upon where there is no law. Arranging for a fair distribution of correlative
burdens seems not to be a troublesome issue with the latter sort of rights, as it is
with socioeconomic rights (Murphy 2000: 74â“5, 94â“7). That is one way in which
the notional absence of a legal system can seriously impede the moral case for
socioeconomic rights: if no law, then no government on which plausibly to place a
duty correlative to such rights or through which to seek and ensure a fair sharing
by everyone of the attendant burdens.
Some maintain that everyone stands morally liable for his or her fair share,
regardless of what others may do (Murphy, 2000). If that is the correct moral
position (a question we need not here engage), then the need for government and
law to ground a background moral right to housing, which can serve to motivate
Law as Premise 157
installation of such a right into law, to that extent falls away. That position, however,
seems destined for controversy that will not soon abate. The day seems distant when
nearly everyone will stand convinced that they carry any share at all of a state-of-
nature obligation of aid to distant strangers whose needs they have not proximately
and culpably caused. How do might one answer those who doubt? There seems
at least a chance of doing so effectively by presenting a political-moral case for
inclusion of socioeconomic guarantees in our countryâ™s constitutional law â“ a
case adducing facts of social cooperation in the form of legal ordering, and the
demands for general compliance with the laws that a legally ordered society directs
to everyone in sight. This political case seems much likelier to persuade doubters
than to offend or repel those who stand already convinced without it. That is why
I call it the least controversial, most widely appealing case available for including
socioeconomic rights in constitutional law, where of course their fulď¬llment will,
as intended, burden taxpayers at large.
All legal systems are, at bottom, practices of social cooperation, dependent for
survival on the persistence in society of general compliance with the laws and legal
interpretations that issue from the practice. They thus all present the question
of political justiď¬cation or legitimacy, the need to supply a moral warrant for
demands for general compliance with laws produced by nonconsensual means,
directed against individual members of a population of presumptively free and
equal people. In the political-liberal formulation of John Rawls (1996: 137, 217),
political imposition of this legalistic sort is justiď¬ed when it is aimed at support
of laws issuing from a constitutional regime that everyone who is both rationally
self-interested and socially reasonable may be expected to endorse. To meet the
test of rational acceptability to every reasonable person, a law-making system
has to include a principle or guarantee affecting every topic for which a rational
person, responding reasonably, would demand a guarantee as a condition of willing
support for the system as a whole. It may well seem that we cannot reasonably call
on everyone, as reasonable but also as rational, to submit their fates to the tender
mercies of a democratic-majoritarian law-making system without also committing
our society, from the start, to run itself in ways designed to constitute and sustain
every person as a competent and respected contributor to political exchange and
contestation and furthermore to social and economic life at large. And that quite
arguably means that social rights guarantees of some kind must compose an
essential part of the constitutional law of any country committed to a broadly
speaking liberal political morality.
That has been an extremely abbreviated summation of how a Rawlsian political-
moral case (as we may call it) would go. This moral case may possibly be decisive
for many who otherwise would stand outside the fold of those who see some
compelling moral reason to establish socioeconomic rights in constitutional law.
Nor does acceptance of the case drive out of the fold anyone who stands already
convinced without it. (Acceptance need not commit anyone to the view that
morally warranted concern for the needs of others ď¬‚ows âentirelyâ from âconcerns
with legitimate governanceâ [Murphy, 1998: 273, 277]). The political-moral case
thus stands as an example of how a philosophically excogitated, background moral
right, understood to prescribe for law still to be determined, can itself depend on
158 Frank I. Michelman
prior determinations of law. But even regarding that modest suggestion, we need
to be careful.
If we are disposed to afď¬rm the existence, wherever there is legal ordering,
of individual duties to support socioeconomic guarantees in constitutional law,
and if we also are disposed to accept Kantâ™s claim of the existence at all times
of moral duties on everyone to support and sustain systems of legal ordering,
then we cannot deny the existence in prelegal nature of a background moral
duty respecting socioeconomic guarantees. For we then would be conceding the
existence in nature of a moral duty to do a thing (collaborate in establishing and
sustaining a legal order), the doing of which either triggers or strongly reinforces
moral duties respecting socioeconomic guarantees. It nevertheless remains true
that the political-moral case for including socioeconomic rights in constitutional
law depends on supposed prior facts of legal ordering, in a way that the moral case
for garden-variety legal rights is not usually thought to do.
Just as no right against patent infringement can arise so long as the putative moral
duty to enact a patent system into law remains unperformed, so the political-moral
argument for the legal establishment of socioeconomic rights takes wing only if
and where the putative moral duty to maintain a legal system is actually performed.
More to the point, the political-moral argument is not dependent on the existence
of any moral duty of the latter kind. The conclusion applies to us as long as we
engage actively in sustaining a legal order, whether or not we are morally obliged to
do so. In fact, it applies to us even if, on some superanarchist view, our engagement
in legal ordering is against the dictates of morality â“ granting that the application
would then be a conclusion from moral theorizing under nonideal conditions.
Dworkin, Ronald. Freedomâ™s Law. Cambridge, MA: Harvard Univ. Press, 1996.
. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 1977.
Fried, Charles. Right and Wrong. Cambridge, MA: Harvard Univ. Press, 1978.
Kant, Immanuel. The Metaphysical Elements of Justice, 2d ed. Trans. John Ladd. 1797.
Reprint, Indianapolis: Hackett, 1999.
Murphy, Liam. âInstitutions and the Demands of Justice.â Philosophy and Public Affairs 27.4
. Moral Demands in Ideal Theory. Oxford: Oxford Univ. Press, 2000.
Rawls, John. Political Liberalism. New York: Columbia Univ. Press, 1996 (paper ed.).
19 Doing Justice to Justice: Paul Ricoeur
david h. ď¬sher
What has lawâ™s justice to do with revenge, or revenge justice with law? Traditional
readings of Aeschylusâ™s Oresteia see the trilogy as marking the early triumph of the
rule of law over revenge-driven violence personiď¬ed as Furies (Erinyes). Thanks to
the persuasive wisdom of Athena in establishing the ď¬rst dicastic court, these savage
beings are transformed into Eumenides â“ âkindly onesâ â“ and installed in a place
of honor beneath the Areopagus from whence they will serve as guardians of dike
(justice). A closer reading suggests another darker possibility: that revenge violence
continues to reside at the heart of the very institution that claims to have tamed
it. In Athens, litigants often used the court system as a means to continue blood
feuds (Cohen 1995). And through the ages law has been used as an instrument of
torment, as demonstrated by Shylockâ™s effort in the Merchant of Venice to use civil
law against Antonioâ™s ď¬‚esh to right his shame suffered at the hands and mouth of
Antonio. The Furies, far from being tamed or banished, continue to reside at the
heart of law. For Paul Ricoeur, these archaic symbols of revenge violence give rise
to his thinking about justice that bears fruit in his ď¬nal works.
Ricoeur (1992: 197) suggests that the âjust faces in two directions: towards the
good, with respect to which it marks the extension of interpersonal relationships
to institutions; and toward the legal, the judicial system conferring upon the law
coherence and the right of constraint.â Before law there are the Furies:
The furies are at home
in the mirror; it is their address.
Even the clearest water,
if deep enough can drown.
Never think to surprise them.
Your face approaching ever
so friendly is the white ď¬‚ag
they ignore. There is no truce
with the furies. A mirrorâ™s temperature
is always at zero. It is ice
in the veins. Its camera
is an X-ray. It is a chalice
| 159 |
160 David H. Fisher
held out to you in
silent communion, where gaspingly
you partake of a shifting
identity never your own.
(Thomas 1995: 31)
Ricoeur knows that âthere is no truce with the Furiesâ; those archaic represen-
tations of binary opposition demanding blood for blood. Lawâ™s understanding of
their claims, in the search for a âstate of peace,â1 requires establishing the agon of
a trial, a space of discourse governed by formal norms and procedures that cre-
ates the necessary but not sufď¬cient condition for justice: âjust distanceâ between
violence undergone and desires for revenge.
In his preface to The Just, Ricoeur (2000: ix) states that he has âundertaken,
over the past few years, to do justice to the question of right and law, to do justice
to justice.â Given oppositions in legal theory between natural law and variants
of postpositivism such as law and economics, critical legal studies, or feminist
jurisprudence,2 Ricoeurâ™s late work on justice opens up âunthought possibilities for
the telling of law and saying of justiceâ (Constable 2005: 178). His voice is informed
by appreciation of differences between Continental and analytic approaches to
philosophy and between Continental and Anglo-American understandings of law,
and his analysis of links among violence, vengeance, and justice at the origins of
law suggests a way to deal with the Furies. His discussion of preunderstandings
embedded in Rawlsâ™s procedural conception of justice (and Habermasâ™s discourse
ethics) further shows the need to ground deontological norms in a combination
of teleological desire and wisdom informed by tragedy and the work of memory.
Ricoeur depicts lawâ™s origins as a social response to desires for retaliation follow-
ing unwarranted violence, desires that, if not checked, lead to interminable cycles of
revenge. This point of departure invites critical comparison with Derridaâ™s (1992)
reading of lawâ™s violence. But where Derrida sees the deconstruction of binaries
into aporia as justice, for Ricoeur (1992: 352) the ethical premise of law as an
institution is recognition of âoneself as being enjoined to live well with and for
others in just institutions.â If just institutions provide a possibility for life together,
lawâ™s promise allows more: the possibility of recognition of fault followed by reha-
bilitation, restoration to civic life for the condemned (Ricoeur 2000: 133â“45), and
perhaps â“ beyond justice â“ for forgiveness capable of âunbinding the agent from
the act,â a restoration of the capacity for acting.3 Pardon cannot be substituted for
Ricoeur (2005: 219â“25) describes characteristics of a âstate of peaceâ in relation to models based
on philia, eros, and agape, asking whether we âcan build a bridge between the poetics of agape and
the prose of justice, between the hymn and the formal rule?â (224). His response develops in a
discussion of gift similar to Derridaâ™s discussion of gift in The Gift of Death and elsewhere.
As well as binary oppositions in the social imaginary of the contemporary public sphere.
Ricoeur (2004: 474) does not adopt a naive or idealistic view of the law: âWhile one of the functions
of the trial is to substitute discourse for violence, it is a fact that everyone does not have the same
access to the arms of discussion. There are those who are excluded from speech, who, dragged before
the courts . . . can view their appearance in court as one more instance of what they experience on a
daily basis as institutional violence.â
Doing Justice to Justice: Paul Ricoeur 161
justice, but this âunbinding would mark the inscription, in the ď¬eld of horizontal
disparity between power and act, of the vertical disparity between the great height
of forgiveness and the abyss of guiltâ (Ricoeur 2004: 490).
In Reď¬‚ections on the Just Ricoeur states that, having focused on the relation
between justice as a moral rule and as an institution in The Just, he now sees
âthe justâ as the connecting thread running through his entire later work. The
just â“ to dikaion â“ should be seen âin terms of two different relations: a horizontal
relation having to do with the threefold relation of the self, neighbors, and others,
and a vertical relation having to do with the hierarchical model of the good, the
obligatory and the ď¬ttingâ (Ricoeur 2007: 5).
Ricoeurâ™s work on justice is a continuation of his ethics. In Oneself as Another,
he argues for the priority of ethics over morality (i.e., for the priority of Aristotleâ™s
ethical aim to live well over a Kantian ethic of obligation), for the necessity of
passing the ethical aim through the sieve of the moral norm, and ď¬nally for the
legitimacy of moving from the norm to the aim when conď¬‚icts arise in practice
(i.e., phronesis in both Gadamerian and Aristotelian senses). Primary capacities
required to achieve the aim of living well â“ the capacities to speak, to act, to
narrate, and to impute â“ are potentials developed in care with and for others.
Conditions for care (âsolicitudeâ) ď¬nd their formal expression in moral norms of
obligation.4 Moral norms sometimes conď¬‚ict, causing âimpasses in practice,â as a
result of the one-sidedness of moral principles confronted with complexity. âIn the
conď¬‚icts to which morality gives rise, only recourse to the ethical ground against
which morality stands out can give rise [in turn] to the wisdom of judgment in
situation. From tragic phronein to practical phronesisâ (Ricoeur 1992: 249).
Ricoeur (1998: 120) begins his account of justice giving priority to a sense of
injustice: âin Plato and in Aristotle the word adikos (unjust) always comes before
the work dikaÂ¨osun` (justice): perhaps that is indeed the way we initially enter into
the problem of justice, through the feeling of injustice, for the feeling that there
are unjust and apportionments.â âThe justâ is ď¬rst of all an object of desire, of a
lack, of a wish (Ricoeur 2000: xv); a wish to retaliate with violence against unjust
violation and achieve the âsatisfactionâ of revenge.5 âThe sense of injustice,â he
claims, âis not simply more poignant but more perspicacious than the sense of
justice. . . . [P]eople have a clearer vision of what is missing in human relations that
of the right way to organize themâ (Ricoeur 1992: 198).
It is impossible to do justice to Ricoeurâ™s ď¬nal reď¬‚ections on forgiveness and
justice here. Instead, I focus on his understanding of relationships among violence,
vengeance, and justice, and then on his response to Rawlsâ™s contractualist procedure
with a âdeontology without a transcendental foundationâ (Ricoeur 2000: 39), to
illustrate some of the possibilities in Ricoeurâ™s thinking on justice, ethics, and law.
This raises a political and legal question: âhow, in a democratic society, we can connect the horizontal
axis of wanting to live together with the vertical axis that Weber calls the axis of domination[?]â
(Ricoeur 2007: 22).
Although as William Ian Miller (2006: 157) remarks, âIf there were a perfect satisfaction, we expect
that it would put an end to matters. But we do not even know how to envisage perfection: what our
anger wants may not be what our hate wants.â
162 David H. Fisher
BEGINNING WITH INJUSTICE: VIOLENCE, VENGEANCE, AND JUSTICE
âAt bottom justice is opposed not just to violence per se . . . but to that simulation of
justice constituted by vengeance, the act of procuring justice by oneself â (Ricoeur
2000: 131). Violence includes the initial wrongdoing that provokes indignation,
the state monopoly on violence that attempts to channel desires for vengeance,
and âthe resurgence of vengeance at the heart of exercising of the act of justice.
The sentence makes someone suffer. It adds suffering to suffering, and thus places
the stamp of violence on a speech act that claims to state the lawâ (Ricoeur 2007:
38). What initial indignation in the face of injustice lacks is distance between the
protagonists. If endless chains of vengeance are to be halted, a âjust distanceâ must
be constructed between claim and counterclaim. This requires âmediation of an
institution capable of incarnating the third person,â armed with coercive powers
moderated by establishment of a corpus of written law (Ricoeur 2007: xx).6
Ricoeur (2007: 227â“8) insists that lawfulness arises from indignant responses
to injustice. The origin of legal justice is an afď¬rmation of the respect owed to
persons: âlegality appears to sum up the moral vision of the world,â and âthe
principle legacy of ethics to morality lies in the very idea of the just, which looks
both ways: in the direction of the â˜goodâ™ as the extension of solicitude to â˜each oneâ™
of the faceless members of society; and in the direction of the â˜legal,â™ to such a
degree does the prestige of justice appear to dissolve into that of positive law.â7