In Sri Lanka, it’s often said that there are two systems of justice: one that applies to the powerful, and another that applies to everyone else.
When a politician or military officer is arrested, for example, it seems they mysteriously fall ill on their way into remand, and are admitted to the prison hospital instead. It’s a fate the common drug addict would love.
So the question arises: how do you create a system of justice that treats everybody equally?
On a recent evening at the Royal College Skills Centre, Verite Research Executive Director Dr. Nishan de Mel looked to post-enlightenment theories of justice for answers.
The meeting was a gathering of the Nightwatchman Society, a new group dedicated to discussing and exploring the classical liberal theory. De Mel was invited to speak on two contrasting theories of justice by two of the 20th century’s most prominent philosophers.
“One set of principles alone cannot determine all questions all the time,” he warned at the beginning of the talk.
Instead, “we should read philosophy sort of as a metaphor that can shape and form our instincts,” he said.
To that end, de Mel presented the central claims of two competing theorists: John Rawls and Robert Nozick.
While neither man’s theory holds the answer for any society’s troubles, de Mel suggested, their thought experiments can help guide people in the right direction.
Somewhere in between, there may be an answer for a justice system like Sri Lanka’s.
John Rawls: institutional guarantees of equality
John Rawls was an American moral and political philosopher trained at Princeton and Oxford Universities. His seminal work “A Theory of Justice” was published in 1971.
De Mel said that the central moral problem for Rawls, like many theorists, was trying to identify the space where equality should be legislated and administered in a society.
“We exist in different circumstances, we have different sets of endowments, we are born to different social situations, different abilities, different bits of intelligence, different languages,” de Mel said. “There is so much diversity in our situation, and then we have to say we are going to treat everybody equally in some way.”
Some theories of equality are mutually exclusive. For example, a government may choose a system of justice that guarantees equal pay for equal work, de Mel said.
But another theory, more in the Marxist strain, might value equal income for everybody. If these two theories of justice were applied at the same time, they would not work.
Someone who works more than another would be entitled to more pay under the first system, but the second would cancel it out.
“So the moral problem can be boiled down to … in what space must I treat everyone equally?,” de Mel posed.
“Rawls struggles with this question of inequality in human society and tries to ask, ‘well, how do we come to some form of agreement about what kind of society we should create, and how much inequality we should have?’”
Rawls recognized that everyone comes to ideas of fairness from the bias of their own social position, including his own. So to combat this problem, he devised a system of proposing justice mechanisms “from behind the veil of ignorance,” or the pre-born state.
“The veil of ignorance is: I don’t know who I will be born as,” de Mel said. “I could be born as Bill Gates, or maybe I could be born as that beggar who I see outside my school.”
So if you did not know into what situation you would be born, how would you organise society, so it treats you fairly no matter your circumstance?
Rawls believed that absolute equality, that is, a system like equal incomes, would dis-incentivize ambitious or talented individuals from pursuing vital careers like engineering or medicine.
So although he believed provenance determines many of our fates, he didn’t completely discount factors like ability and choice, de Mel said.
“So Rawls says, well, let’s agree we can allow inequality provided ‘the pie’ is made bigger, and that the worst off person gets a larger slice in a larger, unequally divided pie, than they would have in an equally divided smaller pie,” de Mel recounted.
Put in other words, “you maximize a lot of the worst-off person,” he said. “The reason to allow inequality is it can make the worst off a little better.”
Rawls’ system of justice involves setting terms on the upper limits of what people can accumulate, in the interests of bettering off the poorest. It is in some ways a redistribution of wealth.
In his thought experiment, because you don’t know how you’ll be born, you’d favour a world where homeless people have access to clothing.
To that end, you might give up the possibility of being a billionaire, and “settle” for the possibility of being born a millionaire, to ensure more resources were available to those on the bottom of the social ladder.
“That difference that the beggar has with a little bit of improvement, you might willing to sacrifice going from being a billionaire to a millionaire, in order to reduce the risk of being cold and freezing to death, in addition to being poor,” de Mel said.
Robert Nozick: Freedom from the state
Robert Nozick, on the other hand, values individual choice over institutional guarantees of equality.
Nozick was also an American philosopher, a contemporary of Rawls, who studied at Columbia, Princeton, and Oxford universities.
His 1974 book “Anarchy, State, and Utopia,” was a response to Rawls’ theory of justice.
“Nozick takes the view that … people make different choices in life, and they’re going in different directions depending on the choices they make,” de Mel said. “So we shouldn’t really constrain people from having different outcomes, as they’re freely chosen.”
To that end, Nozick wanted a society that allowed a great degree of free choice.
“For instance, you might have a great voice, and I might have a great voice, and you decide to train yours and you end up as Madonna and crowds come to listen to you and pay very high prices to buy tickets for your concerts,” de Mel said. “They do this voluntarily and freely, and so you get rich, and they’re a little poorer.”
Nozick’s caveat was that starting points should be equal. The state structure should be minimal, providing only protection and law and order, and any inequalities arising from such a system would be tolerated.
Nozick was a proponent of the “nightwatchman state,” where the government only provides minimal services like security and protection of contracts.
Unlike Rawls, Nozick is firmly against the idea of redistribution. His thinking was, “you mustn’t take from the rich and give to the poor because you mess with people’s freedom,” de Mel said.
“Nozick takes the position that you deserve the fruits of your labour and your effort and your choices,” he added. “You’ve done something, you’ve worked hard, you’ve contributed and you deserve the benefits of those things.”
A middle ground
So what might the views of these two philosophers hold for Sri Lanka?
“In my own view, I find it very hard to take an absolute view in (Rawls’) instinct that everything is somehow just God-given and providential,” de Mel said at the conclusion of his talk.
“But I also find it very hard to think that everything can be explained by how smart I am and the choices that I’ve made and how much effort that I’ve put,” he added.
When you flesh out both theories into real-world scenarios – either redistribution or minimal state involvement – de Mel said that “both of them leave us uncomfortable at some point.”
As a “socialist” society, Sri Lanka in some ways aligns with Rawls’ vision, with its public health and education systems.
“(But) in many ways the US is more of a socialist society than Sri Lanka is,” de Mel said. “Because they have a 50 percent inheritance tax.”
The instinct inherent to this law aligns with Rawls’, that you shouldn’t benefit from the wealth of your parents, de Mel said. “What have you done? You’ve done nothing to deserve the wealth of your parents.”
On the other hand, a person who falls ill in the United States without health care must pay exorbitant amounts of money for necessary treatment.
De Mel suggested a society should not follow just one philosophy or another but engage critically with multiple frameworks to arrive at the best outcome, which may fall somewhere in between.
“It’s better to think of (a theory) as a very important metaphor, or a story that shapes our instincts and how we think about our problems,” he said.
To illustrate his point, he gave the example of the mass expulsion of Tamils living in Colombo in 2007.
Early in the morning of June 7, the police rounded up almost 380 people living in hostels around the city, loaded them on buses, and evicted them to areas in the North and East.
The public reaction was immediate and outraged.
“My friends from [the Centre for Policy Alternatives] got very upset because human rights were being violated,” de Mel said. “The JVP got extremely upset because this was offending a socialist conception of society. The Buddhists got very upset because this was so cruel. The Christians got very upset because this was not a kind way to treat people.”
Following a CPA fundamental rights filing, the Supreme Court issued an injunction on the police to stop the eviction. Some of the people were immediately brought back to Colombo, and former President Mahinda Rajapaksa publicly criticized his police chief for the expulsion.
De Mel said the case was a good example of how different theories of justice could converge on the best solution.
“Now if you were trying to convince the JVP to adopt the principles of human rights, or the Christians to adopt the principle of ahimsa, you would have completely failed,” he said. “But actually we don’t need to do that. We can say there are different people from different moral corners converging on the agreement that this was wrong.”
In other words, “we can agree it’s wrong without agreeing why we think so,” he said.
De Mel suggested that people can hold different ideas of justice at the same time, and not need to fight so hard to get someone else on their own side. The focus should instead be placed on the outcome.
In a society as diverse as Sri Lanka, with a plurality of languages, religions, and ethnicities, the spaces of common ground may be the country’s greatest asset.
“Our different moral instincts that converge to be outraged about certain things, that may be our guidance,” he said. (Walter Wuthmann)