The human element

Writing in 1792, in the aftermath of the French revolution, Jeremy Bentham famously dismissed all talk of the rights of man as mere rhetoric. Justice, he said, was concerned with rights and duties, and they were the creatures of law. There could be no rights without law to express them, he said, no justice without courts to enforce it. Yet generations of political philosophers have speculated about rights in terms which have very little to do with law.

The mathematician and economist Amartya Sen is contemptuous of Bentham’s dictum. He is concerned with the ethical claims which men may be said to have against one another, claims which are thought to have some moral basis, but need not necessarily have a legal one. What place should personal liberty have in a just society? How should resources be distributed between men whose notions are governed by the pursuit of justice? What does justice require, as between members of a community? In a world of imperfect institutions and impure compromises, how much justice do we really want? These questions are worth asking in any state of the law.

For nearly 40 years they have been answered under the shadow of the American writer John Rawls, whose book, A Theory of Justice (1971), put political philosophy back on the agenda for the first time in more than a century. Rawls’ most famous concept was the ‘original position’, an imagined state in which members of a community meet to order their affairs without any knowledge of their personal capabilities. Whatever men would choose without knowing whether it was in their interest, Rawls conceived to be inherently just. Viewing the world from post-war Harvard, he regarded mankind as instinctively averse to all unquantifiable risk.