A Levinasian Theory of Justice: The Problem of Retribution in Capital Punishment CasesRebecca BroadbentEidos, 02nd December 2010.IntroductionThe notion of justice becomes problematic when dealing with issues of retribution. Families of victims in capital punishment trials often speak of their need for retribution and justice as they conceive it. It is possible to construct an argument against capital punishment based upon Rawls Theory of Justice. Rawls sets out the principles of justice with the intention of aligning the theory itself with our judgements about what the role and obligation of a political society should be. The principles of justice are articulated as if they were formulated from a primary situation which assumes mutually disinterested rationality. But this conception of justice could be criticised for its failure to acknowledge the importance of retribution as justice. By drawing on Levinasian considerations we can counter this objection by appealing to Levinas ethics concerning the responsibility for the Other, thereby improving the Rawlsian argument against capital punishment.Rawls Conception of JusticeThe Principles of Justice1.) Basic liberties and duties should be assigned with maximum equality;2.) Economic inequalities are justified only if they benefit the least advantaged members of society.

Justice is the first virtue of social institutions, as truth is systems of thought laws and institutions no matter how efficient and well arranged must be reformed or abolished if they are unjust.[footnoteRef:1] [1: Rawls, J (1971) A Theory of Justice, Harvard University Press, 2003, p. 3]

The Legitimation of PowerThe legitimation of power an authority has is contingent on good reasons. Rawls good reason thesis can therefore be defined thus; i) Reasons that agents would accept if we were being fair; not circumstantial.ii) Reasons that all rational agents would agree to (i.e Kants Categorical Imperative, making an appeal to Universal Reason)

By adopting the ethical approach of Levinas, we can give weight to the rejection of circumstantial claims,.Levinas Project: Ethics as First PhilosophyLevinas holds ethical orientation is fundamental to all human existence. Ethics is a universal mode of being, which orientates us as subjects in the world. The fundamental alterity of the other person manifests itself in everyday life; we are constantly surrounded by ethics and relationships with others. It is a primordial relationship. The encounter with the Other reveals the primordial and fundamental responsibility the self has for the Other. In this way, ethics is first philosophy. Ethics as an appeal for goodness and justice: Overcoming RetributionLevinas is appealing to a metaphysical desire, a desire for goodness obligations, responsibilities, the call to justice to the radical otherness of the other person.[footnoteRef:2] The first human particularity is the relationship with the Other, which according to Levinas, opens up a goodness. If we are convinced by the Levinasian model of humanity, we can bypass problems of retribution, on account of our primordial responsibility to the Other. [2: Levinas, E (1981) Otherwise Than Being or Beyond Essence, translated by Alphonso Lingis, Duquense University Press, 1999, p. xii.]

The Primordial Responsibility to the OtherAt the most base level, the Other, in Levinas words, is the neighbour. Since ethics is to be found in every intrapersonal relationship, every subject is the Other. Levinas claims that From the start, the encounter with the Other is my responsibility for him.[footnoteRef:3] Levinas justification for the primacy of responsibility is that it is a fundamental structure of subjectivity. He takes responsibility to mean responsibility for the other. [footnoteRef:4] In responding, we become responsible for Levinas. The Other obliges me to take on a responsibility that transcends knowledge[footnoteRef:5]. He strengthens his claim that responsibility is a fundamental structure of subjectivity with a critique of Heideggers solitary Dasein. [3: Levinas, E (1998) On Thinking-of-the-Other, translated by Michael B. Smith and Barbara Harshav, The Athlone Press, London, 1998, p. 103.] [4: Levinas, E (1996) Ethique et Infini, Livre de Oche, 1996, p. 91.] [5: Hand, S (2009) Emmanuel Levinas, Routeldge, 2009, p. 42.]

Levinas claims that Daseins understanding of Being presupposes an ethical relation with the other human being, that being to whom I speak and to whom I am obligated before being comprehended. Fundamental ontology is fundamentally ethical. It is this ethical relation that Levinas describes as metaphysics. [footnoteRef:6] [6: Critchley, S Leaving the Climate of Heideggers Thinking in Levinas in Jerusalem: Phenomenology, Ethics, Politics, Aesthetics, edited by Jolle Hansel, Springer, 2009, p. 48.]

Levinas asserts that responsibility for the Other is prior to all civilisation and is not any sort of cultural gesture.[footnoteRef:7] Responsibility is an individuation[footnoteRef:8]. By this, Levinas means it is responsibility which gives us selfhood. [7: As cited in Love Strong as Death, Levinas and Heidegger, Jeffrey L. Kosky, in the Exorbiant; Emmanuel Levinas Between Jews and Christians, eds. Kevin Hart & Michael A. Signer, Fordham University Press, 2010, p. 110.] [8: Ibid., p. 111.]

Why be moral? Against RetributionGiven Levinas position that we are granted selfhood in response to the responsibility to the other, why should we accept this as a reason against retribution? Levinas response is that the subject is given to itself in responsibility in the pre-philosophical experience of ethical summons:The subject appears not spontaneously but in response to the summons of the other the subject attains ipseity in submitting to its subjection to the summons that demands responsibility. I am thus myself in an original inappropriateness without being the source or master of that self; for I receive myself from a relation to the other, who is there before I am[footnoteRef:9] [9: Love Strong as Death, Levinas and Heidegger, Jeffrey L. Kosky, in The Exorbiant; Emmanuel Levinas Between Jews and Christians, eds. Kevin Hart & Michael A. Signer, Fordham University Press, 2010, p. 112]

Levinas justifies this with the claim that contrary to Heidegger, the event which inaugurates me with my selfhood, rather than death being my ownmost possibility[footnoteRef:10], that which individualises me, it is the fear for the death of the Other which makes me me. Death is not which individualises me, contrary to Heidegger; it is the encounter I have with, and the responsibility I have to the Other which grants me my selfhood. [10: Heidegger, M (1927) Being and Time, 50: 294.]

The subject is inseparable from exposure to this appeal or election which cannot be declined. This exposure to the election of the other is so radical that I cannot evade or slip away from it without losing the me that I am responsibility [is]prior to any commitment. That is, prior to any choice on my part and without regard for any thought or action I may have committed, the other summons me as responsible.[footnoteRef:11] [11: Ibid., p. 113.]

ConclusionThe choice of whether to accept Levinas claims depends on two things: firstly, that which he describes as the categorical imperative of assuming responsibility[footnoteRef:12], and secondly the conception of justice as humanitys deepest and most pressing ideal[footnoteRef:13]. [12: Levinas, E (1987) Outside the Subject, translated by Michael B. Smith, Sanford University Press, 1993, p. 158.] [13: Cohen, R. A, Buber and Levinas and Heidegger in Levinas and Buber, Dialogue and Difference, edited by Peter Atterton, Matthew Calarco & Maurice Friedman, Duquesne University Press, 2004, p. 248]

Levinas could be criticised on the basis of having a philosophy which appears utopian: why should families of victims feel compelled to take on this responsibility for the Other of which Levinas speaks? Levinas claim however is that this responsibility isnt something one takes on it is already given, simply by virtue of being in relationships with people.