Blog Marcos L. Mucheroni Filosofia, Noosfera e cibercultura

The traditional concept of Justice is one that comes from the Enlightenment and idealism, will have its consecration in the Introduction to Hegel’s philosophy of law, the margin of this right survives Christian, Islamic and other beliefs (Haiti, for example, had a Creole constitution) , but always the margin.

One can, for historical reasons, return to Kant and Fichte to discuss theoretical questions of justice, but the modern state and its laws, which are the foundations of contemporary justice, at least in the West, have their foundation in Hegel, and an essential concept there is that of ethics, which comes together with the idea of justice based on the equity itself and not on what is fair.

So Hegel theorizes ethics as “objective morality” or “ethical life”, remember Kant’s categorical imperative: “acts in such a way as to be a model for others”, thus an individual morality, but Hegel’s two abstract concepts they are law and morality.

The scope of ethics, to realize the ideal of freedom, is present in the family, in civil society and in the State, but with the State as sovereign over the other institutions for which it establishes a contract, and the moral and ethical rules are defined by someone who acts in this way, then this is a quality of ethics and ethics.

It goes beyond Kantian thought by stating that there is a subjective morality and an objective morality, a classic dualism of idealism to which Hegel is an apogee, for Kant was the first to say “acts in such a way” that it is universal, for Hegel it is the second and for this will define a new (abstract) concept of the “self-determination of the Will”, which is an objective morality.

It may seem that the “individual” (questionable) right is preserved, but in almost all legislation in “missing” situations, it is the state through the judge that determines the justice, see article 4 in the Brazilian case, of the Introduction to the Civil Code:

“Art. 4th. When the law is silent, the judge will decide the case according to analogy, customs and general principles of law“, there is no objection of collective or individual conscience and there is also no self-determination of the will, it is decided by the State, and already in this it differs from morality.

The current discussion has advanced in phase to serious social problems, on the issue of equity, and even on the veil of contractualism (the law ruled by the state), the most eminent name is John Rawls, for whom his discussion advances on intuitionism and utilitarianism, which Paul Ricoeur will focus on to question his concept of Justice in his work: “The fair or the essence of Justice” (1997).

Essentially, the discussion is about collective, diffuse rights (of nature for example) and equity, Paul Ricoeur moves towards a hermeneutics of law, while Rawls towards liberal law and equity in the face of justice and not the social rights of human dignity, and different from equity and social justice.

References:

RAWLS, John (1997). A Theory of Justice/John Rawls: Trans. Almiro Pisetta and Lenita MR Esteves – São Paulo: Martins Fontes.

RICOEUR, Paul. (1995). The just or the essence of justice. Trans. Vasco Casimiro. Lisbon: Instituto Piaget.