The guides for behaviour in society, as a need arising out of the association of human beings, are the outcome of a society’s experiences. These experiences are undoubtedly determined geographically and historically. However, “the thought and actions of its members will inform the basic postulates of a society and shape the principles . . . which govern the social order.”[1] At the forefront of a society’s laws, along with historical and geographical facts, lie the general ideas about justice and human nature.     These general ideas may be viewed as themselves geographically and historically influenced. Nevertheless, philosophical discourse has a history of its own and has always, directly or indirectly, directed legal thinking.[2] If one views the history of philosophy as a more or less linear progression, then it becomes apparent how different schools of thought gave rise to different theories of law and justice.

Let us take the example of Marxism. Marx’s dialectical materialism in a sense developed, whether positively or negatively, from Hegel’s dialectical idealism. This radical shift in ontology was followed by the change in the view of the relationship between the individual and the state. The teleological nature of Marxism, namely the withering away of the state and its laws as the eventual outcome of Communism, gave legitimacy to the system of laws established in Communist states.[3] The “dictatorship of the proletariat” was taken as the necessary transitional period in which the existing state power and its legal apparatus could be legitimately used against the bourgeoisie and proponents of capitalism.

The laws that were thus applied in Communist states had as their final aim the non-necessity of the state and its laws. This was not an aim that these states adopted due to only geographical and historical circumstances. The theory behind their system of laws relied on potentiality and was thus purely future-oriented. Furthermore, as a political system, Communism was adopted in countries such as China and Cuba, and not in Western Europe where it had been conceived.

Perhaps such an example of revolutionary law-making is not representative of the evolution of law in the majority of states. Yet, it illustrates the potential outcome of philosophical speculation concerning the problem of justice. The adoption of certain laws depends on a number of factors, which range from social facts to the influence of intellectual movements. This was the case with the revival of Roman law in Europe. While one of the reasons for its successful implementation had been that it suited more the interests of medieval emperors, it was also enforced by the Renaissance intellectual movement, as part of a larger revival of Roman and Greek culture.[4]

We can also look to the sources of law to see how law is shaped by many different factors apart from geography and history. The sources of law include on the one side custom and judicial precedents, but also legislation and codification. Some law systems give more importance to one over the other.[5] Custom, shaped by social facts, even when contradicting legislation, has the power to exert great influence on judicial decisions. This is evident in the fact that “the strength of a custom of justified vendetta still surfaces in jury trials in Corsica and Sicily.”[6] Nevertheless, custom is itself not solely shaped by experience but also entails ideas of morality. Thus, any “legal system does not need merely to . . . align particular doctrines with particular opinions or social practices    . . . . A legal system must be regarded as morally appropriate for and by the people it governs.”[7]

In the shaping of specific laws, factors such as geography may play the leading role. Examples of such instances are immigration laws. A country which is geographically proximate to regions from which influxes of illegal immigrants are frequent may find it necessary to impose stricter border control and visa regime. However, even such instances are closely tied to other factors such as the political and economic conditions of a given country.

The determining factors of a country’s laws actually exceed the limits of geography, history and abstract philosophical speculation. Countries change their laws due to a wide range of forces, both external and internal. A country such as Serbia is currently in the process of changing its legislation in order to harmonise its laws with those of the European Union. This is possible in the first place because geographically Serbia is part of the European continent and the people of this country see themselves as historically belonging it. However, due to the economic and political instability the road to European integration is seen by the leaders of this country as the only possible solution. Moreover, although the idea of peace, freedom and protection of human rights is overwhelmingly appealing to the population, it is also the case that the reason the country is changing its laws to reflect those of the European Union is because it is one of the conditions for membership.[8]

As a conclusion, the argument that geography and history are the determining forces of a country’s laws is found to be insufficient on a number of grounds. While the role of these two factors is evident in their primacy in the shaping of specific laws, even in such cases they cannot be separated from other factors such as economy, politics, religion, and constant attempts to better the legal system according to philosophical ideas of what the concept of justice entails.

The tension that Taylor exposes, and hopes to provide a solution for, is one between the politics of universalism and the politics of difference. How the tension between the two arises is best summed up in Taylor’s following statement:

With the politics of equal dignity, what is established is meant to be universally the same, an identical basket of rights and immunities; with the politics of difference, what we are asked to recognize is the unique identity of this individual or group, their distinctness from everyone else. The idea is that it is precisely this distinctness that has been ignored, glossed over, assimilated to a dominant or majority identity.[1]

The characteristic of the two opposing principles is that the second arises from the first. It was the move towards the equal status of all human beings as citizens that made the claims of the politics of difference possible in the first place.

It should be stressed that Taylor’s account does not contain any nostalgic elements, nor does it call for a restoration of the old world order. This is extremely important because the notion of equality is irreversible. There are people who glorify the times of the Athenian democracy as a ‘Golden Past’, where this kind of talk would not have made sense. The reason why it would not have made sense, however, is because of the lack of the politics of universalism. The only people who were considered citizens at all and who could partake in the political life were free male Athenians. Between them the need for a politics of difference did not arise because their identity was developed against the same background.

Today, however we have reached a stage of recognizing all human beings as possessing a certain potential due to which we ought to accord them the respect which they deserve. That potential is something all humans share and is the basis of sameness and equality. There is another vital need, however, which arises out of this principle and that is the need to be recognized for what one is. It is important to such an extent that “nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.”[2] The need for the recognition of difference logically arises out of the politics of equality, but once it arises it becomes extremely hard to integrate the second into the first. Taylor realizes this fact and hopes to show why both principles are necessary to coexist in modern states, and why the second should not be rejected in order to preserve the first.

A serious problem arises when we examine the actual demands of the politics of difference and what they imply for a society. Namely, the basis of respect as developed in the politics of equality demands that we show a person due respect because of a certain potential that that person possesses. We are not demanded to show respect for the actual outcome of the person’s potential. The politics of difference, on the other hand, demands of us that we recognize cultures that have already evolved and realized their potential. The problem is that “the demand for equal recognition extends beyond an acknowledgment of the equal value of all humans potentially, and comes to include the equal value of what they have made of this potential in fact.”[3] In my opinion, this is a valid demand to some extent, since the characteristic of the so-called superior cultures has been theft and domination to such an extent that the underdevelopment of some cultures has been caused by their abuse.

It is at this point that we can confront the claim quoted in the title of this essay. Taylor does not agree with the above quote and seeks to show that our decision regarding this issue must not be an either/or one. The inevitable question that we must face is: on what grounds should we equally recognize evolved cultures and why should we allow for exceptions to certain cultures in order to help them remain in existence? Taylor’s answer to this seems to be that since certain cultures have provided a background for the identities of individuals over a long period of time they must have something worthy of respect. This can never be a final value judgment, however, but only an assumption with which one should start the study of another culture. The key here is the knowledge of other cultures and Gadamer’s notion of the ‘fusion of horizons’. In this way it might be possible to overcome the fact that there is no divine objective standard by which to judge evolved cultures. What we should do, according to Taylor, is “learn to move in a broader horizon, within which what we have formerly taken for granted as the background to valuation can be situated as one possibility alongside the different background of the formerly unfamiliar culture.”[4]

Taylor uses the example of Quebec to show how the two opposing principles can become reconciled and even complementary. Concerning the recognition of the distinctness of French-speaking citizens, Taylor suggests that it

need not violate liberal principles so long as restrictions – like requirements that Francophones and immigrants attend French-language schools, large businesses be run in French and commercial signs appear only in French – do not infringe on ‘the fundamental liberties’ of English-speaking citizens of Quebec.[5]

The notion of a universal potential has here been further developed to include securing the conditions for the outcome of that potential. This is undoubtedly related to the view that cultures, as much as individuals, are determined to an enormous extent by the conditions in which they had evolved. It is an extension of the view held by Bertrand Russell that “different conditions bring out different sides of our natures, which is why it is worth thinking about political arrangements at all.”[6]

The politics of universalism has established as necessary the equality of opportunity. What the politics of difference demands is equality of outcome. A liberal society cannot enforce substantive views about the ends of life. All it is permitted in establishing is a procedural commitment, whereby it commits itself to treating people with equal respect. The demands for the equality of outcome are that the collective goals of a certain culture should be treated with equal respect and even be helped to achieve by the broader community of which it is part. There should be exceptions made on the part of the legal system concerning the minority culture in order for that culture to preserve its collective goals. The following is a typical statement of objection to the demands for the equality of outcome:

Equality of outcome can thus be seen as an ‘unnatural’ result which can only be achieved by massive interference and the violation of any notion of a ‘fair’ race. Faster runners will have to be handicapped . . . In short, talent is penalised and an equal result is achieved by a process of ‘levelling downwards’.[7]

In my opinion, what Taylor argues for is that the situation need not necessarily be a “levelling downwards”, and it is to that extent that I agree with him. Taylor sees the difficulty in the demands for the equality of outcome and tries to find a middle path by claiming that what is necessary is that we start with the assumption that every culture is equally worthy of respect. What are conclusions will be cannot be established a priori.

Taylor does not outline the final solution to the problem, but his claim is a powerful one to the extent that it can set in motion the process of overcoming ethnocentricity. It is precisely ethnocentricity that prevents us from seeing the specific value of a different culture. We cannot demand, as Saul Bellow does, that the Zulus produce a Tolstoy.[8] Western feminists have no right to demand from Muslim women that they liberate themselves. There is no ground for demanding that and there certainly is no telling whether a Muslim woman feels more liberated in following the norms of her own tradition than the Western feminist does in rebelling against male domination. “We are always in danger of seeing our ways of acting and thinking as the only conceivable ones. That is exactly what ethnocentricity consists in. Understanding other societies ought to wrench us out of this; it ought to alter our self-understanding.”[9]

Taylor is in favour of a liberalism that sees the importance of cultural survival and is not reluctant to allow for exceptions in the principle of universalism. However, as quoted above, it must not allow for injustices to be done against the majority culture, yet still support the struggle for the preservation of a minority culture. Taylor does not by this mean that liberalism should be completely neutral concerning culture. It itself must be able to draw the line. In referring to the case of Salman Rushdie, Taylor argues that “there will be variations when it comes to applying the schedule of rights, but not where incitement to assassination is concerned.”[10]

Although he does not think that his solution is a simple one, Taylor is not convincing about his notion of liberalism having to draw the line at a certain place. We come again to the question that we started from. Namely, what is the standard by which we should judge where to draw the line? Not only is the line drawing relative to cultures, but also relative in time. Where we draw the line today concerning the punishment of criminals is certainly different from a hundred year ago.

I certainly find Taylor’s arguments worthy of discussion, but fail to see why he does not think it necessary to address the issue of power concerning these matters. The notion of the “fusion of horizons” seems to be taken rather simply. The conflict perspective still stands in the background of all we have discussed so far and the fact that it has not been addressed does not make it less important. Power manifests itself in all spheres of public life and the standard by which we will draw the line at the end of all discussions will be the standard as established by a dominant culture, which is not a permanent standard as realized by that culture, but vulnerable to the passing of time. The standard that determines the drawing of the line will change over time and by other cultures becoming more prominent. It could even be the case that certain resources will become so scarce that this discussion will go on from an altogether different point of view, however trivial and unimaginable that might sound to us now.

Two philosophers who looked at society without government or before government were Thomas Hobbes and John Locke, referring to this society as the state of nature. Hobbes describes man’s state of nature simply as constant war of each individual against another, a state in which morality and justice play no role whatsoever. A man will do anything in order to preserve his existence. John Locke also recognised this society as lacking political structure, but insisted that even in this kind of society there is a certain law of nature, which teaches mankind against harming one another and teaches equality and independence. The two opposing views led both philosophers to different conclusions on how a state should be organised. Hobbes held that the only solution was unconditional and unlimited power of the government, while Locke stressed the rule of the majority.

These two viewpoints seem to me to be essential in determining a route one will take in his beliefs about warfare. Taking a view that war is a state of nature would ultimately mean going against nature in trying to prevent wars. The position of the just war theory is somewhere between the extreme view that war is essential to man’s nature and the other extreme of refusing to use violence even in cases of self-defence as is the case with pacifism. The theory deals with recognising the conditions in which war would be morally necessary.

The just war theory started developing with the Christian Church and is today being used in international law. Central to this position is the idea that “the state’s use of violence in war is similar to its exercise of force in internal jurisdiction”.[1] Even thinkers such as Augustine held that just as a ruler may use force against wrongdoers inside the state, he may also use it against external wrongdoers. The theory is divided into the theory of jus ad bellum and jus ad bello. Jus ad bellum deals with what makes it right to wage war, while jus ad bello identifies the actions which are morally right to take during war. The conditions for jus ad bellum are that war may be waged only by a legitimate authority, it may be used only for a cause which is just, it must be the last choice, and there must be a very strong indication that it will be successful. The most important conditions of jus ad bello is that war must be fought in such a way as to do less harm and evil than would have happened if it had not been waged and that the killing of innocent people is not permitted. The major problem that arises from these conditions is the one concerning the distinction between who are the innocent people and who are not. From different ethical perspectives people make different conclusions on whether soldiers and officers are guilty or not.

The position of the just war theorists seems to stand on the same grounds as utilitarianism. The essence of utilitarianism is the greatest good for the greatest number. This necessarily implies not sparing a few for the welfare of thousands. This is actually one of the conditions of jus ad bello. To make sure that less evil will come about if the war is fought is a utilitarian approach. That the world really functions in such a way can be proven easily; all one has to do is analyse the wars in the last century and the policies of the allied forces. If one agrees with Hobbes then the just war theory appears to be the best of all possible ways in which mankind is able to “tame” its natural urges. However, this gives rise to another problem altogether. It is supposed that “utilitarianism is scrupulously impartial between persons, in the sense that no one is allowed to count for more or less than anyone else”.[2] How then does one decide to sacrifice a bodyguard for the life of a president who can also be replaced like the bodyguard? Presidents and bodyguards are replaced all the time.

It may be viewed that every war is in a way seen as just by the party that wages it. Even in cases of conquest, a nation will argue that the reason of its wanting to expand is to protect it from being conquered itself. So, who decides whether a war is just or not? When there is no balance of power in the world a nation can argue that the wars it fights are just, without a force of equal power being there to oppose it. According to Nietzsche, the whole world is a will to power. The powerful will do all they can to stay in power and the oppressed will ask for freedom and equal rights just in order to make the powerful less powerful and to become powerful themselves. He accepts that today’s society has a higher value of peace than of war, but he sees it as something anti-biological. “Life is a consequence of war, society itself a means to war.”[3] Are we then to believe in the just intentions of those in power when they wage wars on nations that demand more power?

The main contrasting current to the just war theory is pacifism, according to which all killing of human beings is intrinsically evil. This is a case of absolute pacifism, but all pacifist theories share in common the view that no violence can be justified, even in the case of self-defence. Pacifists believe that the rejection of violence is the path to creating a Utopia.

It has been mentioned that the just war theory assumes that the state is justified to fight against external wrongdoers in the same way as it is justified to enforce law and order inside it. If we accept the extreme pacifist view that all violence is wrong then that would mean rejecting the state, “for crime control is one of the main purposes of the state”.[4] This puts the just war theorists in a great advantage when supporting their arguments that pacifism cannot serve in international law just as much as it is useless in the law of the state. We do not even have to analyse the pacifist view of warfare, because war is simply not allowed under any circumstances. It can be compared to Kant’s categorical imperative. We cannot imagine a world, in which killing would be made a universal law, therefore we should not kill.

Pacifism relies on the assumption that if a certain number of individuals take the pacifist approach towards violence, that attitude would spread around and affect more and more people. This kind of global reaction in present day society is simply not achievable. The pacifist attitude cannot be made a global one due to the government systems in the world. There is not one single government in which everybody has equal power. Equal power should be distinguished from equal rights. The possibility of everybody having equal power would destroy the meaning of the word “power”. The word necessarily demands that there be somebody superior who possesses power and somebody inferior to recognise this power.

War itself can never be considered to be a moral act. The cause might reflect some morality from the utilitarian approach, but the act itself is never moral. However, cases always arise where morality plays a part in war. Since the birth of war itself, soldiers had some mutual agreements on how a war should be fought. This has to suggest at least some morality. The Ancient Greeks used to form truces for just long enough until each side has time to bury its dead. Every so often we hear of instances of soldiers killing people during the funerals of those already killed and we are shocked; we are much more shocked than when we hear about four soldiers being killed in the frontlines. This is because we have come to accept that the frontlines are an acceptable place to kill enemies, a place where one dies with honour. This proves that some aspects of morality can be applied to completely immoral acts.

It is a great risk to say that all means are legitimate in war and to say that the end justifies the means. The same question appears again on what ends are noble ends. It is highly probable that Hitler held his ultimate end to be a very noble one and did not actually like the means he had to take. Self-defence is assumed to be a noble end, but even here we come across a problem of what one sees as a good grounds to take up self-defence. This is an extremely ambiguous problem when dealing with individuals defending themselves. With the case of nations the problem becomes much greater.

It seems to me impossible to dismiss any of the theories mentioned as completely wrong. All of them have elements that are essentially true. To decide which means would be legitimate in the conduct of a particular war one would have to examine the circumstances under which the war is fought. The sound judgement behind the decisions would have to rest completely at the mercy of mankind and the appropriate authority figures. All we can do is hope that the choices following the just war theory really lead to a noble end and to the minimizing of the possible evil.