Having spent a week grappling with the profound issues raised in this paper, I have come to the conclusion, once again, that the study of conflict resolution must be multidisciplinary.  The contribution that Xavier has made—from the perspective of political philosophy—is invaluable to anyone seeking a comprehensive understanding of conflict and mechanisms for its resolution.  In this thesis, he has forced us to reckon with the underlying assumptions that not only guide our theory of conflict but the choices we make—either consciously or unconsciously—when intervening to resolve it.  Our methodologies—if they are indeed built upon theory—are also built upon notions of how the world works and how human beings fit into that epistemology.  Xavier takes us to the "originating question": what is human nature and how does it affect our experience of living together in the world?   Depending upon our answer to this question, we derive our understanding of how to establish order in our social system (and laws to insure it) so that we can be together in such a way that enables us to live out our true nature.  

If in fact, we as human beings are all striving for the realization of our perfection—"the perfection of the nature is imprinted in the nature itself" (footnote, p. 32), then we need freedom to bring that about. Freedom in this sense is the "human capacity to act or not to act as we choose or prefer, without any external compulsion or restraint."^(*) Out of this line of thinking comes the conclusion that this fundamental freedom needs to be protected at any cost.  Given the superior status of the individual in this conceptualization of the human experience, laws need to be enacted to protect this necessary freedom.  But what is the basis upon which the law is made?  

Xavier argues that our current conceptualization of conflict and conflict resolution is rooted in a Western, individual-centered epistemology.  This epistemology posits an understanding of justice that gives all the power to individuals to decide what is just.  There is no room for external notions of what is right and what is good because according to this philosophy, there is no "truth" outside of the individual's experience of reality (idealism).  Given that there is no truth outside of our experience of reality (and even if there were, we would not be able to "know" it), we are left to our own devises to come to a consensus about what is just.  Justice, in this case, is context driven, fluid, and even elusive.  

The field of conflict resolution has been reticent to make judgments about justice because it was decided that a neutral or impartial third party would make it easier to bring the parties to the table.  The argument is that if the third party assigned blame or responsibility to one party, the likelihood of that party showing up for discussions was minimal.  Better to have the discussions than not.  Given this logic, along side the notion that what is just can be best determined by consensus of the parties themselves, practitioners in the field have developed considerable comfort in this "neutral" stand.  In fact, one might even sense a certain righteousness in taking on the role.  

What Xavier has made abundantly clear is that the decision to maintain neutrality or impartiality is derived from a set of choices about how the world works.  He takes us through the Aristotelian (realism) alternative that argues for an external reality that is separate from the human mind, from which a set of "natural" laws are derived.  From this perspective, justice is something that is separate from our human construction and understanding of it, and should be rooted in natural law.  This conceptualization of justice would argue for an analysis of what is right and good outside of the individual, because we should not be dependent on our understanding of justice on human beings who are in the process of perfecting themselves.  

Xavier claims not only that we need to re-think how justice is derived in the field, but that it is a fundamental source of conflict.  Without addressing the fundamental source of conflict, we will never arrive at a durable peace.  He is arguing for an external standard for justice (I am assuming such as international law/and or human rights or the development of a legal body that presides over all states) that can honestly and fairly determine how to assess responsibility for the cause of the injustice and standards for righting the wrong.

I would like to focus my comments about this thesis on two issues: first, what this thesis reveals regarding the role of the third party in conflict resolution and second, why I believe that an external standards for assessing the injustice is necessary for sustainable conflict resolution.

I have been increasingly uncomfortable with the "impartial" role of the third party practitioner.  In all of the conflicts in which I have played the role of intervenor, there has been some degree of oppression by one party by the other.  There are clear violations of people's right to freedom and dignity and yet we have made the decision that we will ignore that for a "greater" purpose, which is to find some way out of the conflict by creating opportunities for the parties to interact with one another in a controlled way to try to deepen their understanding of each other's perspective.  The desired outcome of this kind of process is a settlement or ideas about a settlement that the parties themselves will come up with, increasing the likelihood of an enduring peace.  

At a personal level, I am deliberately putting my own morality on hold (I believe that freedom and dignity are sacrosanct) in order to play the role of intervenor.  Underlying that is discomfort is even the more disturbing realization that I may be perpetuating the status quo in doing so.  What this thesis has clarified for me is that the assumption that we have been operating from—the assumption of necessary impartiality—is based in an epistemology that I do not subscribe to and one that I believe needs to be fully aired in the conflict resolution community.  

Which leads me to the second and related issue: the need for external standards to judge what is just.  In addition to the arguments that Xavier has made, my experience as a practitioner offers other reasons for why justice-by-consensus is problematic.  

The social-psychological literature is rebound with research and evidence to show that parties in conflict inevitably fall prey to numerous cognitive distortions of reality as a consequence of the experience of threat⁽¹⁾ .  In most conflicts where the threats are mutual and existential, the distortion becomes so pervasive that the dynamic takes on a life of its own, resistant even to disconfirming evidence.  Interestingly enough, even the most sophisticated and cognitively developed individuals are not immune to these distortions, so one cannot rely on rational information to change their minds.  Not only can we not rely on incoming rational information, we cannot rely on the individuals themselves to engage in a process that is rational and certainly not fair! This leads me to the conclusion that if we are putting all of our hope on the parties themselves arriving at a fair agreement in the context of a discussion, we are ourselves deluded!

The other concern that I have regarding the consensus approach to justice has to do with where we are as human beings in the evolution of our social consciousness.  When I look back at where we have come in the evolution of our thinking about what is acceptable and unacceptable treatment of one another, I feel confident that we are on a trajectory that is taking us in the direction of understanding the consequences of our behavior toward others.  This understanding is leading us to more humane treatment of one another and is allowing us to develop more fully as human beings, not only making us better individuals, but enabling the kind of connections with one another that makes us greater than our individual selves.  

Given that reality, I then look back at what we once felt was acceptable treatment of one another—situations such as master-slave relationships and ideas of superiority that justify unequal access to freedom if not genocide.  Although we have made considerable headway on the slavery issue, and are only beginning to see the consequences of attitudes of superiority (the current state of race relations indicates that we have a way to go on this point) it makes me aware of the fact that we are a species in progress toward perfecting ourselves and that we are inevitably limited by our evolutionary stage in history, allowing us to justify what in 100 years we will look back on as repulsive.  

The question becomes, how do we get out of our own limited consciousness long enough to see what they will see 100 years from now?   The good news is that there are always more evolved individuals than others (Gandhi, Martin Luther King, Mother Theresa for the stellar examples) whose vision is not blocked by egocentrism and who, in most cases give their lives for the advancement of human consciousness.  

What is the conclusion?   If we leave the profound matter of justice in the hands of individuals who are so traumatized and affected by existential threat, then we will never see an enduring end to these conflicts⁽²⁾.   We need not only external standards for justice, but third parties that is ready to use those standards to define their role.  The question of impartiality becomes irrelevant, as their role will be to uphold the standards, not impartiality, and certainly not the balance of power.

This will not be an easy transition to make for either the role or the process that would emanate from this new conceptualization of justice.  Our task now is to see how to apply this new understanding, which I see as a necessary step, if we are going to be agents of social evolution.

Xavier has given the field a brilliant set of ideas with which to work.  My suggestion is that he take the central ideas from this thesis for a paper for publication, which could be the basis for a broader discussion in the field.  On a grander scale, I think he should consider a book, which includes some more specific recommendations for practice.  Either way he goes, he has the material for a major contribution to our thinking as conflict resolvers.

If it is required of me to give a letter grade, I would give him an A.

Thank you for the opportunity to evaluate this remarkable piece of work.

^(*) Note by the author: this is the most common definition of liberty. In the text I actually criticize this definition, since it limits the concept of freedom to something purely external (freedom of action) and devoid of purpose.  Instead, I advance the understanding of a notion of freedom that encompasses the whole of the human person (freedom of being) and it is aimed at the perfection of the nature. [Back to text]

⁽¹⁾ See Ross and Ward, 1995.  Psychological barriers to dispute resolution, Advances in Experimental Social Psychology, Vol. 27. and Kelman (1997).  Social psychological dimensions of international conflict.  In , Zartman and Rasmussen, (Eds.) Peacemaking in International Conflict.  USIP Press. as examples of this vast literature. [Back to text]

⁽²⁾ There is also the issue of defense mechanisms that are triggered by threat.  See Goleman, Emotional Intelligence, for a description of how the defense mechanism of denial (of one's own violent behavior) shuts one off from the ability to empathize with the other (put another way, enables one to justify his aggressive and violent treatment of others). [Back to text]

In writing about conflict resolution, medicine has often been a source for powerful and inspiring metaphors.  The peoples affectd by conflict often present before the eye of the professional scholar or practitioner the desperate image of a bleeding body, particularly in times of crisis, to which almost no conflict is immune.  In view of the urgency of the situation—you either stop the hemorrhage or the patient dies in your arms—it is not only understandable, but also imperative that the bleeding be stopped with no further deliberation, and at all costs.  Unfortunately, the comparison fails on the side of its lack of adequacy to the seriousness of real life: through the open wound of conflict real human lifes might be slipping away, and not just chances to save them.

Therefore, the importance of putting a contention to violence in critical situations'stopping the blood—shed'—can never be underestimated.  Nevertheless, once a succesful intervention has put an effective end to the bleeding, it would be irresponsible to leave the patient go with no diagnosis, no prognosis or treatment whatsoever, deeming definitive and sufficient a mere suture to force the edges of the wound together and prevent the blood from flowing out forever.  Even in cases where the origin of the hemorrhage was accidental, the responsible physician will not feel exempted from inquiring about the causes of the wound and recommending a proper treatment for the damaged area and, if applicable, measures to prevent future occurrences of those causes.

Now, let us suppose that the bleeding, even if provoked by an ordinary accident, was not an ordinary bleeding, not just the common hemorrhage ensuing the opening of any of the veins or arteries that carry the savia of life to every cell of the living organism.⁽¹⁾ In this case, the mere accident and its consequent wound will not be enough to explain the magnitude of the hemorrhage.  In consequence, any diagnosis or analysis that does not go beyond the accident itself will certainly fall short of a sensible response.  Just imagine that the patient is a hemophiliac.  Could we consider responsible a doctor that diagnoses causes and prescribes treatments totally unaware —or mindless—of this critical circumstance?

A very current situation illustrates this idea. The so-called "Peace Process" between Israelis and Palestinians has recently run into a painful stone in its way, it has tripped on it, stumbled, and —in my opinion—has met its end, unavoidable as it was, as they are the ends of all masquerades, when the veils of costumes and characters are dropped to reveal the real identities of the actors.  The accident: the failure of the US brokered negotiations in Camp David or —even in a far more shortsighted analysis—, General Ariel Sharon's visit to Jerusalem's Haram as-Sharif or the Temple Mount, on September 28, 2000.

The point here is whether either accident —or even both accidents put together—suffices to explain the measure of such a reaction, of such a bleeding.  Letting the patient go with nothing more than a suture and a bandage —that rather circumstantial interpretation of the immediate causes of the events, that I would characterize as a simple 'Band-Aid'—would leave the deeper causes unattended and, therefore, the crisis is bound to reoccur.  

According to the very traditional definition by Aristotle —albeit old and widely in desuetude is the one I fancy—, science is the "true and certain knowledge of things through their necessary causes".  Therefore, a "scientific approach" is the one that inquires about the causes of the phenomena under observation.  In the case of the patient with an excessive bleeding, the scientific approach would be to ask why.  "Why": this single question word is starting point of any science.  If the observer asks why, then the approach is bound to be a scientific one.  Obviously, the question "why" explores possible causes.  Those "possible" causes will remain under test, until proved "necessary".  The true scientist will not rest until this "necessary cause" is found and proven.  

I believe that there is an intimate relationship between justice and conflict (or, more accurately, between injustice and conflict).  Maybe injustice is at the very root of any human conflict...  Maybe a theory of conflict could, and should, be formulated around the issue of justice...  Maybe all conflicts originate in some sort of injustice, whether because of the occurrence of a real injustice or because of the perception of an injustice.  Of course, I realize that even a superficial account of the numerous situations of alleged injustice may probably yield a much larger number than the account of numerous conflicts.  Therefore, this argument might become even more plausible when we consider that, as with injustices, not all conflicts are patent, but there are many that are latent (Moore C., 1987).⁽²⁾

There is a certain kind of conflicts in which the treatment of the issue of justice is consistently avoided, which is why they seem to be insoluble.  These conflicts stand out because of their intractability and obstinacy to defy the passage of time.  Expressions such as "protracted social conflicts", "deep rooted conflicts", were coined to epitomize their description, and they are "deep rooted" precisely because they dip their roots in the ever-flowing source of human conflict: injustice.

Injustice is the hemophilia of human conflict.  Any conflict where the treatment of this disease is consistently avoided will inevitably be characterized by excessive, sometimes even spontaneous bleeding.  Leaving this issue aside would be tantamount to let the hemophilic patient go with no treatment for his⁽³⁾ disease, doomed to an almost certain death by bleeding.  We know hemophilia has no cure and, alas, its counterpart in the comparison, might not have it either.  Justice, particularly if considered as that insatiable yearning of the human heart, might not be attainable in this world.  The immediate consequence of this for the field of conflict resolution is that there is no danger that it will eventually run out of matter and purpose.  As with the field of medicine

In scientific areas like medicine and conflict resolution, knowledge is pursued not as an end in itself, but to be applied towards a higher end: health, peace.  Therefore, the true scientist should not feel satisfied with just the achievement of knowledge through the causes.  Since the goal is health, or peace, the necessary causes that effect the breaches of health and peace, must be addressed, and eventually, removed.  In medicine, the achievement of the ideal end is not always possible.  Sometimes, like in the case of hemophilia, the cause cannot be removed.  

What should be the attitude in these cases?   Denial?   There is, typically, a wide room for denial in such cases.  Those most affected —the patients of an incurable disease, in this example—are more likely to rush and take a place within that room.  It is needles to say it: there is no such room for scientists, as long as they want to remain "scientific".  

Another possible response: avoidance.  The dreadful possibility of facing an incurable condition should conceivably lure many professionals away from so desperate and unrewarding a case.  Nevertheless, for some fortunate reason (perhaps because of the level of challenge they pose, or perhaps mankind should get some credit for the reason), these cases also attract a good deal of attention.  But, for the most part, the levels of practice and research remain intertwined in a way that it might not always be positive for scientific progress.

When a disease has no cure in sight, then treatment is needed.  Practitioners in these cases are often overwhelmed by the need to assuage the consequences of the incurable condition, and the focus of theory and research might understandably become drained by the requirements of a better yet ever insufficient treatment.  But research and theory should not forget the scientific imperative of finding out causes -the deepest and necessary causes.  Pure research (research of causes, beyond the research to improve treatment) should be ultimately aimed at finding and attacking the original source; in other words, pure research should be aimed at finding a cure.  Incurable diseases call for treatment, but they also call for research of causes and cure.

It is critical to discern between the two different levels.  Many times, possible solutions that are the fruit of theoretical endeavors aimed at ameliorating a certain condition can be mistakenly presented (or viewed) as the solution to the conflict, as the final and definitive cure.  

In the endeavor to attain peaceable solutions to the numerous violent conflicts that afflict humanity, scholars and practitioners alike are often—if not always—confronted with the dilemma of having to postpone a just solution for the sake of merely putting a contention to violence, stopping the bloodshed in many cases.  But there is an extremely important difference between postponing a just solution and forgoing a just solution.  Only under a great deal of pressure the parties can accept a status of injustice as the final resolution of the conflict, which is a sure recipe for future and worsened conflict.  On the other hand, making it explicit that a just resolution is being postponed constitutes a clear acknowledgement of the injustice of the situation, thus jeopardizing the perception of neutrality in the third party—according to a certain position: it would plainly rule out neutrality itself.⁽⁴⁾

In face of this dilemma: What should be the position of the neutral third party?  Is neutrality indifference towards justice?   Is it possible to remain indifferent to justice?  Is it desirable and meaningful for conflict resolution?   We hear the words peace and justice too often together: what is the true nature of the relationship between these two concepts?  

Responsible practitioners and analysts could not help inquiring about the causes in the origination of the particular characteristics affecting the conflicts under their focus of practice or analysis (or both).  The answers they find are necessarily conditioned by their specific scientific background and their scientific definitions of the concepts at play.  

The concept of justice is a highly controversial one, since it relates to very basic definitions of human nature, individual freedom and society.  There is no agreement on what justice is, and it is not surprise that most authors avoid the subject.  In this paper I will try to explain two major philosophical positions in relation to the issue and then to draw the possible analytical and ethical implications for conflict resolution that may derive from adopting one or the other position.  I also try to offer some theoretical considerations about justice that are meant to be in accordance with the less common of those philosophical positions.  These considerations might serve as the theoretical basis for an applied approach to conflict resolution.

The work is divided in four sections.  The first section ("What is Justice?") is devoted to the explanation of the two major philosophical positions in relation to the issue of justice.  The second section ("The analytical implications") describes some arguments to show the weakneses and limitations of the traditional social and psychological sciences to approach the issue of justice.  The third section ("The ethical implications") is an argumentation in favor of the application of an objective notion of justice to resolve the dilemmas posed by the commonly accepted value of neutrality in conflict resolution.  Finally, the fourth section ("Some theoretical considerations") offers some conceptual approximations that may serve as a rough framework for a new theory of conflict taking into account its intrinsic relationship to justice.

"Iustitia est constans et perpetua voluntas ius suum cuique tribuendi"⁽⁵⁾

(Ulpiano)

Dealing with the issue of justice can be difficult for many reasons.  I wish to dwell particularly upon two of those many reasons that make the issue so evasive: 1) the indefinition of the definition and 2) the indefinition of the scope.

Not many authors wrote about justice, and when they did, they have seldom carried out the task of defining it.  They either just assume that there is a consensus about what justice is, and that everybody would understand the same concept being conveyed by the word "justice", or they just content themselves—and their readers—with mere descriptions or classifications of different kinds of justice (distributive justice, commutative justice, retributive justice, procedural justice, and so on).

I do not share the assumption that there is a consensus about what should be understood by the locution "justice".  And, because of the subject of this work, neither do I think it possible to content myself with mere classifications or descriptions.  In the end, all sub-classifications of justice are but means or processes that aspire to achieve just results.  

The dichotomy results-procedures relates to an understanding of conflict that I will later describe as trivialization of conflict, according to which all common problems that arise in the daily life of a political community and call for a resolution affecting more than one person are characterized as conflicts.  The perceived fairness about the common "rules of engagement" typical to democratic societies may suffice to parties involved in such conflicts, that I call problems.  But to a party enmeshed in a violent conflict because of its aspirations to achieve justice, what matters, in the end, is the justice of the end result.  The end result can only be a re-distribution or, hypothetically, a change of perception about the parties' aspirations.

There might be many different ways to define justice, but there is a critical distinction among this variety of definitions, given by the recognition or denial of the existence of a Natural Law, and the possibility of acquiring its knowledge.  I include those who deny the possibility of acquiring the knowledge of a Natural Law, within the group of those who straightforwardly deny its existence.  Even though denying the possibility of knowing something is not necessarily tantamount to implicitly denying its existence, in practice it works exactly in that way.  Those who deny the possibility of knowledge, for the sake of scientific knowledge, are forced to construct a theoretical framework that excludes its existence: studying the subject of justice as if objective justice does not exist slowly, but inexorably, jabs any theoretical construction until it is 'firmly' standing on the premise that it does not exist. This standing point is what gave life to the Iuspositivist tradition.

In legal science, Iuspositivism is the school of thought that emerges as a reaction against the multi-secular tradition of Iusnaturalism.  As I explain later, Iusnaturalism was mainstream philosophy in Roman legal science and in the Middle Ages permeated by Christian thought.  It was taken as a given that the laws dictated by humans (the positive laws) had a yardstick to measure their justice outside the positive system, in a perennial and universal law that precedes all laws and gives them legitimacy: the Natural Law.  Iuspositivism reacts against the idea of the existence of a Natural Law and decries any idea that posits the measure for the positive law outside the positive law itself.  As a consequence, the law becomes identified with justice, and the very notion of an unjust law is thus denied, even in the level of hypothetical formulations.

According to the "Natural Law" tradition or Iusnaturalism, the notion of justice is something objective, resting upon an objective criterion, independently from context, human construction, culture or perception.  From this point of view, the end result of the different processes of distribution can be qualified as just or unjust when matched against a pre-existent objective criterion.

In the positivist tradition, instead, since there is no objective criterion (or there is not, at least, a possibility to acquire its knowledge), the criteria are multifarious, depending upon context, human construction, culture or perception and the laws are but the product of those differing and circumstantial criteria.  One of the most common criteria nowadays, in a western context strongly influenced by contractualist theories about society, is consensus, meaning that justice can be contrived through consensus.  Consensus can be directed to the end result or to the process.  John Rawls (1972) proposes a process and seeks an agreement upon it; as long as there is consensus on the process, the end result will be just.  

The importance of this distinction becomes paramount if we consider that the field of dispute resolution, as we know it in the United States, has thrived under the shelter of this culture of consensus, with emphasis on justice as fairness—procedural justice or consensus over processes.

Another circumstance that makes the issue of justice so confusing is the assumption of "moral inclusion" (Opotow, 1990).

Not only within the most modern social sciences, but also in the more traditional works from philosophy and political sciences, the issue of justice has been contained within the boundaries of the society politically organized.  First, a scope of justice is somehow delineated: the civil society.  Second, all the discussion focuses on a political framework, within the context of a defined (or to be defined) and politically organized society.  

Hardly anything goes beyond that scope, as though justice was not an issue across communities, which makes sense when we consider justice a matter of consensus over procedures.  The consensus is assumed within communities and seldom accross communities.  The International Law, alas, is still underdeveloped, and whatever happens outside the states seems to fall in a vacuum of justice where the law of the more powerful still rules.

We need a theory of justice focused on human beings, independently from their relationship to this or that particular civil society.  This is a generic need, but it becomes far more sore when it comes to dealing with ethnic conflict, whether between groups within a political entity or between a political entity and a national, ethnic, cultural, let us say, any human group.

As it will become clear later, the definition of the scope will vary according to the 'definition' of the definition.  The fundament for what is just will be the same fundament for the extension of the concept.  If justice is to be defined as stemming from a Natural Law that is unchanging and universal, it will naturally ensue that the scope of justice is likewise unchanging and universal.  On the contrary, if justice stems from the subjectivism of an individual or group (sum of subjectivisms or middle-points between subjectivisms), from the consensus of a group of people, from context, or any other circumstantial sources, the scope will be likewise circumstantial.  This explains why, to the doctrinaires of Iuspositivism, the scope cannot go beyond the political society, because the fundament of justice is nowhere to be found, except within the political society.  Therefore, justice cannot apply to those outside the political society.

The theorists of political philosophy or philosophy of law, are confronted by a long-time discussion over the existence of a Natural Law.  To be sure, these confronting positions are rooted in two very different schools of philosophical thought: the school of philosophical realism, and the school of philosophical idealism.  The influence of these schools on political and legal philosophy could be characterized as Iusnaturalism and Iuspositivism, although with fairly less defined boundaries.  To be exact, in terms of self-inclusion —even more, of idealist self-inclusion—the boundaries are quite undefined.  Many supporters of idealism would consider themselves Iusnaturalist.  But what ultimately counts is their epistemological standpoint.  If necessary, it can be proven that, according to the definitions of each of them that I propose, there is no possible Iusnaturalism sustainable from an idealist epistemology.

The school of realist philosophy was probably first elaborated by Aristotle (382-322 BC), and can be characterized, very simplistically, as the one that stands on the epistemology of reality: reality exists outside the mind and can be known.  More over, reality is the only proper object of the mind.  Knowledge is a vacuum as long as it is not filled with reality.  But reality does not depend on human knowledge to exist; it exists whether or not it gets to be known by a human mind.

This line of thought will likely look to the common reader as a matter of common sense.  To the philosophically 'educated' or more 'sophisticated' western reader, it will likely look as a rather simplistic outlook that has been long outdated by the highly elaborated schools of western modern philosophy.

After the demise of Alexander the Great, Aristotle's most eminent disciple, and the subsequent collapse of his empire, the philosopher fell in disgrace and so did his philosophy.  His school remained somehow alive though, in the archives of the renowned library of Alexandria, from where it was rescued, centuries afterwards, by philosophers that were to become highly influential in the philosophical formulation of the theology of both Islamic and Jewish religions: Avicenna or Abu Ali ibn Sina (980-1037), Averrhoes and Moses Maimonides (albeit with more Platonic elements in the latter philosopher).

Later, it was Thomas of Aquinas who, studying Avicenna, re-discovered the philosophy of Aristotle.  Aquinas did an incredible work of coupling the Greek's teachings with the religious teachings from the Catholic Church, to end up by laying the philosophical foundations of Catholic Theology.  His work is so vast and complete, and it so profoundly relates the Christian Tradition to its fundamentally realist philosophy, that the Roman Catholic Church solemnly declared, by Pope Leon XIII in the XIX Century, that Aquinas' philosophy is to be considered the official philosophy of the Church.  This did not take place before several centuries during which it was a matter of fact that Thomas of Aquinas' work and ideas were to be the cornerstone for any Christian philosophy with any chances to orthodoxy.

This realist line was feebly contested in the West by different authors.  But, according to many, it was not until Descartes that the definitive break away from this line was seriously grounded.  In his celebrated work, Discours de la méthode (1637), Descartes shifted the starting point of all philosophical thinking.  He placed the tottering buoy of "methodical doubt" on the very spot from where the 'dogmatic' beacon of certitude about the existence of reality outside the mind, and the possibility of its knowledge had illuminated the world of philosophy for centuries.  

The unavoidable realization that every human perception of the same reality is different from the other, —therefore the perception is affected by the subject, the perception is subjective⁽⁶⁾—had conducted many to conclude that, even if it existed, reality outside the mind was impossible to be known, and therefore, an impossible subject for human knowledge.  Tormented by this encirclement of skepticism Descartes developed a quasi paranoid necessity for constructing an epistemology that would not be 'influenced' by previous views, an epistemology that would be based on an indubitable certitude, which, once forsaken the logical aid of the senses, could only be found through the exertion of the pure reason.  This necessity led him to doubt, as a method, until he could find a truth of which he could not doubt any more.  Doubt led him to his famous formulation "cogito, ergo sum".  As long as I doubt, I think.  I think; therefore, I am.  This became the certainty, the new 'dogma' upon which the modern western philosophy would be 'firmly' established.  Thus, he put the mind at the beginning, in the place of reality and its ancient principles of identity and non-contradiction.  He laid the groundwork for the coming idealism.  Soon his realization would become a consequential relationship: from the I think, therefore I am to the I exist because I think there is not much more than a logical step.

In a nutshell, the founding idea for all idealisms can be enunciated as follows: "Objects, so far as the knowing mind is concerned, exist only when perceived; but perception ('being perceived') is a conscious mind-state or 'idea'; hence, objects are only conscious mind-states or 'ideas'; consequently their existence or 'being' (esse) is nothing but 'being perceived' (percipi): esse est percipi."⁽⁷⁾

The 'tragedy' of Aristotle's realist philosophy in the West has been, perhaps, the formidable assistance it provided to Catholic Theology.  The discovery, by Thomas of Aquinas, of the works of the Greek philosopher, and the application of his conceptual elaborations to the theological teachings of the Church, heralded the marriage between realism and Catholicism.  Soon, Aristotle's concepts and even the same terminology employed by him were to become immortalized in the Church's dogmatic formulations.  To such extent this marriage was committed that, from then on, whoever had the boldness to confront the Church and its dogmas, would irremediably be pushed to confront the philosophical framework within which the Catholic dogmatic forging had been mounted, as well.  And conversely.  The relationship had become to be such that, if the dogma was rejected but not the philosophy, the door would had been left wide open for the way back to the dogma, at least to a certain degree.  And conversely.

And dogma was, precisely, what idealism was trying to shake off the spheres of influence of philosophical thought, as it would be perceived as a contamination for the rational purity.  Thus, the very word, dogma, became more and more a target of a process of disrepute side by side with realism, particularly in the Anglo-Saxon world as a consequence of the Protestant Reform, and from there to the rest of the world.

Nonetheless, the original Greek word dogma, meaning "cornerstone", something upon which to build something durable, did not have the negative implications that it has nowadays.  Its use was obviously chosen as to convey the idea of something immovable and solid, but with no original sense of arrogance and presumption, as it became to have in our times.  Neither did it have the implied meaning of a truth that is held against reason.  Dogma can well be a certain starting point that is recognized, or even reached, by reason.

Even though dogma has been historically blamed as the culprit for hindering scientific progress, I cannot imagine any progress unless there is an original dogma, something firm that is believed in with no questioning, on where we can reliably stand so as to take the next step to continue in the path of progress.  

It is impossible to proceed over water or over a miry terrain; we need solid ground in order to advance.  And the very first firm rock, the starting point is a dogmatic belief.  

Knowledge relies on faith.  In the first place, it relies on the faith on our sensorial faculties as instruments adequate enough to extract data from reality.  If, instead of having this 'dogmatic faith' in his senses, Isaac Newton had started vacillating about their reliability, he would still be wondering about whether the apples were actually falling from the tree or if that was just a distorted perception, a construction of his mind.

It is natural to believe.  It is common sense.  It is not common sense to doubt, unless, of course, we harbor serious suspicions about the credibility of the source.  But it is not reasonable to have just a-priori suspicions in the Cartesian way⁽⁸⁾.

Our senses are our connection with reality.  When we loose confidence in them, we are "thinking too much", and thinking too much in disconnection with the "outside world" is dangerous: it pulls us to the marsh of idealism, where the mind is the ruler instead of reality.  Reality does not shape the mind (the realist notion of knowledge as mind adopting the form from reality); instead the mind shapes reality.  Little by little, as history of western modern philosophy can attest, we slip away from reality, submerging ourselves until we drawn in the quagmire of our ideas.

In the second place, we need faith in our rational competence to establish relationships among particularized sensorial experiences, to discriminate, in each single encounter between knowing subject and knowable object, the form from the matter.  Thus we are able to capture the essence of the object, as an object, not just as an epistemological episode, and draw universality from particularity.  We need to believe in the human aptness for abstraction.  One apple falling from the tree is just that: an apple falling from the tree.  The perception of the same event once and again plus the exercise of our reason connecting all those instances of the same events abstracting the particular differential characteristics of each case, will permit us draw general statements, videlicet laws.  

Kant brought the principles set by Descartes even further, and Hegel arrived to the inevitable conclusion that nothing is until is known, and all that is, is as long as it is known.  To put it crudely, the idea creates reality: whence its name of idealism.  Marx made it materialism, when in lieu of idea he placed human labor.

After Hegel, idealism evolved in many different directions, and it is, without questioning, the inspiring idea for all the mainstream schools of philosophical thought of modern times, including the XXth Century.  Realism has been definitely set aside, as an archaic philosophy that served well the purpose of the Church in its golden times but was unable to keep up with the technological and scientific advances of mankind.

The relevance of this realization is that idealism precluded the connection between mind and reality, and reality was the clue for the contents of justice.  Hence, in a world steeped in the pervasive influence of idealism, the clues for the contents of justice will inexorably be sought for in places other than reality.

In the realm of the science of law justice is a quintessential concept.  Nevertheless, it is precisely in this realm that contradictions about this concept abound.

The school of ius-positivism "attempts to have submission to no criteria whatsoever (so as to avoid all meta-juridical contamination), and sustains that whichever legal order is in force constitutes what is right" (Velasco Suárez, D. 1997).  The school of Iusnaturalism, instead "understands that legal order is that social order (or ordination of the human inter-subjective behavior) that is just" (Velasco Suárez, D. 1997).

In the old Roman Republic the science of Law was known as the study of justice, or the study of what is just.  Still nowadays, in several countries (specially in the countries with a Roman Law tradition) this science is known as "Derecho" (Spanish), "Droit" (French), "Diritto" (Italian), "Recht" (German), what is right, what is just.

I cannot really think of an accurate way to translate this expression into English.  It is, literally, Right.  Not understood as the individual's prerogatives, but as the sets of norms that regulate the relationships within a community; in this sense, The Right would encompass all the different sources of individual rights, including the Law (understood as the written law, sanctioned by a legislative body), custom, judicial precedent, etc.  In the legal systems of Common Law (all those derivated from the British Commonwealth), this science is known as just the science of Law; whereas in the countries of Roman Law this science is studied in schools of "Right" (schools of "Derecho", for example), in the Common Law this science is studied in "Law Schools".

This could be related to the fact —untested fact, admittedly—that ius-positivism has had a deeper impact in the countries of Common Law, and thus the identification of law and justice is such that even the denomination of the science itself is conveying a positivist bias.

Let us not be mislead, though, by the mere denomination of this science in the countries of the Roman Law.  The influence of the ius-positivist doctrines has been overwhelming in the countries of the Roman Law as well and, in most of their interpretations, what is right ("Derecho", "Droit", "Diritto", "Recht") is identified just with positive law, with the standing law.  Therefore, eventhough they keep some nominal relation to the notion of justice, they do not differ really much in content from the more accurate denomination in the countries of the Common Law.   In the Common Law tradition this science limits itself to the study of law, and is denominated consequently.  In the Roman Law tradition, this science, most likely often, limits itself to the study of law too, but it keeps the old denomination.

In the original Roman Law, this science was denominated jurisprudentia, a science concerned with the study of what is just, the study of justice, and not merely the study of law.  The law was meant to be a faithful reflection of what is just, since the Roman juridical thinking was predominantly of a downright ius-naturalist belief.

Ulpiano, the great Roman jurisconsultii, defined justice with the following formula: "iustitia est constant et perpetua voluntas ius suum cuique tribuere"—justice is a constant and perpetual will to give everyone his own right" (D.1, 1,10 pr.).  This definition, so simple and seamless, at the same time so abstract, has become the most referred to definition of justice.

The first thing that catches our attention while reading this definition is the noun used: will.  Therefore, justice is understood as a quality of the person, the virtue of being just.  Thus, justice is defined as the attribute of the just person, that who has a constant and steady will, namely a disposition, to give everyone his own.  

The second realization about Ulpiano's definition and his identification of justice with virtue is the utter lack of reference to a source where to look for what is everyone's own.  It tells us what a yard is, but it does not provide us with the yardstick.  The reason seems to me pretty obvious: Because the yardstick was exposed to everybody's eyes! Where to look for the rule that will tell us what is just?   Where else but in the natural law! "Justice would be definitely null and void if it is not found in nature", wrote the illustrious Roman philosopher, politician and orator, Marcus Tullius Cicero (106-43 BC).  For the ordinary Roman scholar of the times of the Republic this was as obvious as it is for the ordinary American scholar of the 21st Century that democracy is the only way towards freedom and progress.  

Thus, it is not surprising that future generations of philosophers, without that surrounding environment where natural law and its understanding was a given, understood meanings quite diverse from its original one from Ulpiano's paradigmatic definition.  Although I propose to linger on Hobbes understanding of justice later on, as a way of illustration for this point, let me quote him briefly at this event:

Needles to say that this is not what the Romans understood from this definition.  Let us hear Cicero again: "Law is the discrimination between things just and unjust, expressed accordingly to that ancient and first nature of things".  The parameter for 'Natural Justice', as Hobbes calls it, is not an impulse of the individual man, but it is written in the ancient and first nature of things.  

It is important to elucidate at this juncture what is the genuine meaning of nature of things and why we can derive laws governing the behavior of things from their nature.  It is not the ordinary meaning that is attached to the common use of the word nature nowadays as related to all that is not human or humanly fabricated.  The philosophical concept of nature that I refer to was defined by the scholastics as the essence as principium of operations.  To be sure, essence and nature are the same thing, only that nature tells about the operational side of the essence.  Being is everything that is, but not all beings are in the same way—they are differentiated by their essence, and somehow limited by it, since essence tells a being what ways it can be.  Therefore, essence not only tells us of a differentiation among beings according to what they are, but also according to what they can be.  Nature tells us of that modus in which a being behaves and can behave, derived from what they are to what they can be.  It tells us about an actuality (what something already is), and a potentiality (what something can be, potentially).  That is why we can infer laws from the nature (or way of behavior) of things.

Let us take, for instance, the laws of physics.  All material beings are inexorably subject to them: you release a stone and it falls (gravity), you put it in water and it will displace water in a weight equal to the upwards force the water generates (Archimedes), you light a fire and the flames go upwards.  In sum, all material beings are subject to the laws of physics and behave according to them.  In the same fashion, we can observe a certain behavior in living beings (also material) that is congruent with their living nature: they are born, they grow, procreate and die.  And they also fall, and if submerged, they displace an amount of water etc. etc, because they are matter too.

All beings follow the laws of their nature by necessity, with one exception: human beings.  Of course, we humans are bound by necessity to those laws that concern us as material and living beings.  We are subject to gravity too.  We are born, we grow, and die.  But those are not the distinguishing traits, those do not pertain to the essence of our nature; they pertain to the material and to the animal side of our nature.  The necessary behaviors that follow the laws of matter and life are not precisely the ones that make a particular being be a human being.  We share the same behavior with other species: therefore, they cannot be taken as essentially distinctive traits.⁽⁹⁾

What is, then, what makes a being be a human being?   What is that essence that allows us to speak of humans even though they are separated by thousands of miles or thousands of years?  

One unacceptable answer is that there is not such an essence: by definition, essence affects all beings.  The only way for a human essence to not be, would be not to be at all.  Which does not make sense.  The discovery of the true essence of human beings is particularly difficult, since their behavior does not necessarily follow their nature.  But the realization about the difficulty to know something should allow nobody to take the easy way of denying its existence.

Another answer, more typical and equally wrong, is that essence changes (nature changes).  That would explain why the "laws of nature" are changing, and why there are no absolute and everlasting ethical principles.  Since human nature changes, so do its laws.  But, again, by definition, essence is what defines a being.  If definition changes, then it is not the same being.  If nature and its laws changed there would be no problem, and no purpose either, since the beings whose behavior they intend to regulate would not exist any longer anyway.  Yet, we speak of human beings, even though they lived in the times of the Roman Republic, or in ancient Egypt, or in the caves! What would be the purpose of archeological endeavors in search of the first human if its nature must have so changed that is not human any more! What would they be looking for?⁽¹⁰⁾

That is what human essence is.  That is human nature: that very thing that allows us to speak of human beings that lived hundreds of centuries ago (at least).  That is why human nature cannot change.  That is why, if we attach a law-originating property to nature, those laws would be perennial, valid for every single being living in the remotest corner of the earth, or the remotest corner of time.  As long as those beings fit the definition of human they will be bound by the laws of their human nature.

But, even if we are persuaded that it exists, it still remains to be demonstrated: 1) Is the character of nature really law-originating?   2) What is that human nature and how do we get to know its laws?  

To answer the first question, we first need to define what law is or, at least, what I understand by the word law.  

Let us say that law is an "order of the behavior (movement, activity) of things" (Velasco Suárez, D.).  Order refers to purpose, since movement happens for a reason, to go from here to there: there is an end —omne agens propter finem agitur.  Diego Velasco-Suárez uses the following example to arrive to a definition of order:

The obvious conclusion from this example is that there is order when the disposition of things serves a purpose.  Therefore, we can thus define order as a disposition of things, similar and dissimilar, towards an end.

I said earlier that nature itself refers to operation, to behavior.  It takes into account not only what a being is in actuality, but also what a being can potentially be, through its activity (or behavior).  Nature follows the movement of the being from pure potentiality to actuality.  Nature refers to both extremes and the movement from one to the other.  That a mass of matter is suspended in space, failing forever to be attracted by a greater mass, does not mean that gravity does not concern that particular mass of matter, because it is potentially affected by it.  That a singular animal never procreates, does not mean that procreation is not in its nature, because it can potentially procreate, and so on and so forth.  

This is the reason why nature expresses itself in laws, since we defined law as a type of order: an order of things in movement (from potentiality to actuality), an order of the behavior of things.  Since order includes the notion of purpose, purpose is present in every law.  There is a reason, intent, behind every law, whether we get to know it or not.  For instance, there is a very plausible purpose for all material beings to be affected by the law of gravity.

Therefore, the definition I will suggest is that law is an order of the behavior of things in relation to an end.  This is a broad definition that encompasses all different types of laws.  As we implied earlier, laws can be classified according to the type of thing whose behavior they intend to regulate.  Thus we can call physical laws to those that regulate the behavior of all material things, biological laws to those that regulate the behavior of living beings, and human laws to those that intend to regulate the behavior of human beings.

Human beings are material beings and are also living beings.  Therefore, our 'behavior' is regulated by physical laws (we are subject to gravity), and biological laws (like plants do, we are born, grow, and eventually—but inexorably—die; like animals do, we move and feel).

And now we arrive to a crucial point.  Is there an essential difference between human beings and all other animals?   Of course, we are all very likely to agree if we deem that difference as relevant as the difference between a gorilla and a zebra.  But, is there something particular about human beings that makes them essentially different not just from this or that animal, but from all other animals as a whole?   Or are men just an evolved variety of apes?   I prefer to presuppose the obvious: the ontologically qualitative jump between the most evolved of apes and the Homo sapiens is of such a magnitude, that we cannot talk simply of "accidental" differentiations.  Those differences run too deep, they are too substantive, for us not to think of some essential difference.  

In any case, it is not my purpose in these pages to try a demonstration of those fundamental, essential differences.  I will take it as a working hypothesis that the most essential difference between mankind and all other animal species is that, whereas all the other animals follow the law of their nature by necessity, the human animal follows his laws by choice, freely.  Human beings are free⁽¹¹⁾ to follow the laws that, paradoxically, stem from what makes them unquestionably human.

We can get to know the laws of matter (physics) and the laws of life (biology) through empirical observation.  We can rely, and we do rely on our senses to infer laws from the repetition of physical or biological phenomena (otherwise, Newton would still be wondering whether the apples were on the ground, or it was him who was upside-down and the apples floating in the air).  If we can rely on our sensorial observation of repetition of phenomena and discover the laws that rule over them, it is only because the same experience will show us that it cannot happen in a different way.  

All material beings are subject to the laws of matter: it is in their nature.  All living beings, that are material too, are likewise subjected.  But, if they are really to be differentiated from non-livings, they will also be subject to laws that pertain exclusively to their living nature.  A plant is different from a rock not in that it is affected by the law of gravity, but because it is also affected by essentially different laws, those laws that are specific to its living nature as a plant.  Likewise, an animal, even if governed by the same rules that regulate the behavior of a plant, is also governed by rules that are specific to its animal way of living.

In the same way, if is true that we are essentially different from all other animals and not just an especially evolved kind of ape, there is a set of laws, those specifically human laws, that are exclusive to our human way of being animals.  

Therefore, we can differentiate in human beings different levels of behavior.  One level is given by our existence as material beings, and this level of behavior will be affected by the physical laws in the same way that any other material being is affected (e.g. gravity will affects us in the same way it affects a rock).  Thus, in this similitude to rocks, men can be the subject of study for the same science and methodology that studies the behavior of rocks, but only to that extent.  The same can be said about the level that is given by our existence as sentient beings, and our behavior in this level can be legitimately assimilated to that of plants or other animals (e.g. we will grow and die, as any other sentient being).  Thus too, it is perfectly legitimate to include the human animal within the subject of biological sciences, but only to that extent.

The human level, finally, is that given by the behavior that is exclusively human, namely, all types of behavior that are not included in the other two levels.  This means that there are human acts (or behaviors) that escape the laws of physics and biology, because they are conscious and free.  For instance, whereas the act of eating is commanded by a biological law, the decision of eating this or that is absolutely free and unconditioned, not subordinated to any law of physics or biology, and therefore, not subject of those sciences.  It is important to bear this distinction in mind, since the natural tendencies meant to follow the laws of our free and intelligent nature coexist with tendencies derived from our animal nature, and they can certainly be opposed at times.

So, according to the kind of beings that they intend to arrange, the laws can be physical, biological or human.  The laws that interest us are those oriented to regulate human acts.  Human acts are those accomplished through some exclusively human quality, namely free and inteligent behavior.

Now, taking a different outlook and considering the way in which those laws are expressed, they can be classified as natural laws, positive laws, and what I call "mental" laws.

I will use an example to explain these different categories of laws⁽¹²⁾.

"Mental" laws. When Carl Benz invented what was to be considered the first automobile with a gas-oil explosion engine, he very likely first had the idea of what to do.  He probably dreamed on a contrivance that could be used to transport people or things from one place to another: he had an objective or goal.  Then he probably thought of the different pieces (engine, wheels, gas pedal, steering wheel, brakes, etc.) that would be needed, and how they would have to be arranged for such a conveyance to serve such a purpose.  There was already a law: an order of different things and their movements in relation to an end.  Still, this law was just in the mind of Mr. Benz: it was a "mental" law, known by anybody but himself, maybe.

Natural laws. The following step would be to develop the automobile itself, molding it according to the laws that were already in his mind, arranging each one of its parts so that the final product would afterwards "behave" in accordance to that mental arrangement, according to that "mental" law.  Thus, the laws that were in his mind alone are now reflected, and somehow embodied in the car.  Those laws and that purpose are not only in the creator's mind any longer: the car itself will objectify both the law and the purpose.  Any other mechanically knowledgeable person would have been able to somehow discover that order and realize that, if certain steps were taken, it would serve the purpose that was in the creator's mind: to convey things and people from one place to another.

Therefore, the law of the automobile is in itself.  It possesses an internal order (or arrangement) that makes that car be a car (its essence).  From that essence, or way of being, it follows a way of behaving (operating) or nature — a way of behaving steered to the goal of the car.  And this is why this nature of this new invention is a law, which we call natural law.

Positive laws. Finally, after building the first automobile, Carl Benz wanted to make it easy for us, mechanically handicapped people.  So he did not supposed that people should conjecture what on earth that contrivance was, and he explained it himself.  Maybe he wrote himself, or it was written to his dictate, a manual.  Thus, the laws of the car were not only in Mr. Benz's mind or in the car's nature: now, they were also exhibited in words.  These laws, because they are positively expressed, receive the name of "positive laws".

Needless to say that there is an intimate relationship among the positive, the natural and the mental law.  The content is the same (they arrange the behavior of the same parts in the same way and towards the same goal).  What varies is only the ways in which they are expressed.

A very common criticism to the theories of the natural law, or ius-naturalism, is that it is evident that the laws of different men, in different places and different times is different.  If law were a derivation of human nature —which, according to the postulate of realism is identical and unchanging for men of all places and all generations—, then the laws should be the same and unchanging.  History demonstrates beyond any doubt —the argument follows—that the laws of men have changed; anthropology demonstrates that people in diverse geographical habitats rule their behavior according to laws likewise miscellaneous.  Hence, there is not such a natural law.

Obviously, this criticism would be legitimate if, and only if, the postulate about the free nature of human will was erroneous.  If natural laws were laws of necessity, that bind their subjects independently from their free decision, then this criticism would be perfectly valid⁽¹³⁾.  

Besides, this criticism presupposes that, just because it is impressed in the human nature, the natural law should be self-evident and thoroughly known by any human being.  Unfortunately, this is not the case.

Nobody can legitimately maintain that he (or she) possesses the complete knowledge of human nature, and, therefore, of the laws that derive from it, saving two possible exemptions.  One exemption would be given by the 'creator' of those laws, and consequently, of the human nature.  As in Carl Benz's example, since he is the creator of the car and its nature, he can legitimately claim that he possesses the complete knowledge of the laws of its functioning.  But who can claim to be the creator of human nature and its laws?   Whoever dared to uphold such a claim would have to prove it with more than enough evidence.

The second exemption would be given by those who can allege that the manual of instructions (to follow with Mr. Benz's example) was given to them.  As in the previous exemption, the connection between them and 'Mr. Benz' would have to undergo the trial of the most rigorous scrutiny.  Furthermore, the completeness of the knowledge, the 'wholeness' of the 'manual', would also need its pertinent and separate pieces of evidence to be brought to trial.

In sum, —unless proven 'beyond reasonable doubt', in the fashion aforementioned— the knowledge of the natural law is paradigmatically limited and incomplete.  Hence, it is perfectly understandable that the knowledge of the human nature — or the natural law, for that matter — varies from human group to human group, and from one epoch to the other.  It is to be hoped, though, that that knowledge should increase as time goes by, and as human knowledge expands in other areas.

Still, my contention here will be that, through the exercise of our mental capacities, using the data that we can gather from reality through the exercise of our sensorial capacities, we, human beings, are endowed with all that is necessary to know the minimal contents of the natural law towards the achievement of the perfection of our nature, in order to fulfill all nature's potentialities.  In the specific case of the conflict resolution practitioner, there exists a moral obligation to acquire as extensive and profound a knowledge about the conflict matter and the laws applicable.

In Ulpiano's definition justice is a virtue according to which the just subject possesses a predisposition, to give each his own.  This definition is presupposing two things: first, that there is a disposition by virtue of which the mine and the thine is somehow determined; and second, that it is not a 'given' that everyone has already his own or, that what belongs to somebody can be dispossessed of what is his own (otherwise the virtue would become pointless).  The just person, to be just, to give everyone his own, needs first to know what belongs to whom.  Where to find that answer?  

The theory of Iusnaturalism, will contend that there is a certain determination of what belongs to whom in the very nature of things.  To put it in other words, Ulpiano's definition assumes a natural pre-determination of credits, it relies on the assumption that there are pre-conscious, pre-humanly given credits to whoever is included within the scope of the definition.  This is, there are rights (credits) that are established without the intervention of human will, regardless of whether the subjects entitled to them are in their full possession and enjoyment or not (as we saw, the definition of the virtue presupposes, at least, that not everybody, is in their full possession).  Hence, the very contents of the Natural Law constitute the source for the discernment of what is just.  In fact, the essence of any law should be the determination, according to nature, of the very just thing.  Reality about human nature is the source of law, and law (the natural law) is the source of justice.

The theory of Iuspositivism instead, will refuse to recognize any natural, pre-human credit (and debits, of course).  The obsession of sciences in general, but specifically of social sciences, to be 'value free', unrestrained by any system of values borrowed from different areas and sources of human knowledge, was not an exception in the case of the science of Law.  This 'obsession' led to the formulation of the theory of Iuspositivism.  In the solicitude for avoiding any meta-juridical contamination, this theory only acknowledges the credits (and debits) that are specifically positivized, only those that have been received (although the correct word would be 'created') by a positive body of law, and that body of law should be a standing one.

If we follow strictly the theory of Iuspositivism, there is no room for conceptions such as an "unjust law".  Dura lex, sed lex ("harsh law, but law"), reads the Latin aphorism that has become the slogan of Iuspositivism.  The law is the law, and it contains within the criterion of justice, with reference to nothing but to the law itself⁽¹⁴⁾.  Therefore, if the definition of justice remains constant, the just person — according to this — would be equivalent to the person respectful of the law, no matter whether the law is just or unjust.  In fact, it is an inanity to talk about just or unjust when referring to law.

In face of the horrendous Holocaust perpetrated by the Nazi regime, the jury of the victorious powers was confronted with the dilemma of putting to trial people who, according to a strict Iuspositivism, should be considered just, since they did not do but to comply with the standing law of their country.  The judges of Nüremberg did not have any other option but to resort to a natural law, pre-existent to and abrogating of the standing law of the IIIrd Reich.

In the aftermath of World War II, the representatives of the nations gathered to sign the "Universal Declaration of Human Rights", and one would think that Iusnaturalism was back to stay...  If there are rights that are to be considered 'human', what would be the philosophical foundation of those rights other than the human nature itself?   The most intemperate Iuspositivism would say that it is its positivization alone, that there is not such philosophical foundation anywhere else but in the very fact that they exist; or, I should rather say, in the very fact that they have been proclaimed. Thence, the foundation for their existence and validity would be an ideological fact.  In a manner similar to that of idealist epistemology, the declaration itself would be the only foundation for the human rights; the declaration would not really declare pre-existent rights, but it would simply institute them.  The Declaration would have not declared those rights as recognition of their pre-existence in the reality of the human nature; it would have rather somehow created them, by the consensus of its signatories.  According to this view, the violation of these rights could not be held against non-signatories and they could be abrogated by the same consensus that created them.

In a fashion somewhat parallel to that of idealism's splitting with realism⁽¹⁵⁾, political philosophy evolved away from the Aristotelian conception of a zoon politikón, a human being that is, by its very nature, political, social, towards all the variations of contractualist theories about the origin of society.

Contractualist theories, such as those by Rousseau, Locke and Hobbes, stand on the hypothesis of an allegedly non-social, "natural" state (or state of nature) previous to the emergence of society.  From a realist, Aristotelian standpoint this is an erroneous assumption, since human beings are considered essentially sociable.  Therefore, to think of human beings in state of pure nature, previous to society is a contradiction in itself: previous to society there is no possible individual human.⁽¹⁶⁾

According to these theories, society is an a-posteriori invention, an agreement to surrender some (or all) of individuals' private rights in order to secure the protection and stability of an effective social organization or movement.  They follow an individualistic and absolutist conception of free will.  And it makes sense, since the human person is not social by nature but by necessity or convenience.  Wherefrom individual liberties, or individual rights need to be somehow or to some extent "surrendered" in the benefit of society (as though benefiting society would not necessarily imply benefiting the individual).  Thus, once and forever, a chasm was opened between the individual and society, and still nowadays political philosophers are struggling with the tension originated by this specious dichotomy.

I mentioned earlier that the conception of free will that is most popular nowadays is the one that understands it as the human capacity to act (or not to act) as we chose or prefer, without any external compulsion or restraint.  This is the individualistic notion to which I referred as the source for contractualist theories about the origin of society.  It is a definition that does not make any reference to the end or purpose of this human capacity.  

Instead, I understand freedom (or free will) as man's capacity of self-determination towards his own end.  There is no real choice in relation to a conjectural array of diversified ultimate goals, as well as there is no possible individual construction of a hypothetically personal ultimate goal.  Since the ultimate goal is the perfection of the nature and is imprinted in that very nature that every individual person carries within, which is personal, and is social, in that shares nature with a multitude of other individuals.  Since the nature is common, it ensues that the ultimate goal is likewise common.  In a way, we could say that we all come from the same place, and we all go to the same place too.

Of course, since it is essential to that nature to be confined within the limits of a free personal subject, the selection of that ultimate goal is personal and is free.  Yet, rejecting it would be tantamount to abdicating the human condition, which is, at the same time, the only free condition that we can know of within the scope of our sensorial experience.  Whence it follows that rejecting the ultimate goal would be equivalent, paradoxically, to forsaking freedom.  To be sure, this is not really possible for man.  Man cannot give up freedom, man is not free to not to be free; as somebody said "we are condemned to be free".  By dint of rejecting that ultimate goal —and all the intermediate goals that are conveniently ordained to it—once and again, we can certainly damage and diminish this capacity, but we cannot abdicate this free condition altogether.

If we then consider that sociability is at the core of a human being's nature and, therefore, is an essential part of its end or perfection (society as component of human perfection)⁽¹⁷⁾, it follows that the fact of living in society cannot possibly limit the individual's liberty understood as I stressed it in the previous paragraph.  Since self-determination towards its own end is of what true free will consists, and society is an essential part of that end or, to put it differently, society makes it possible for the individual to reach that end, therefore, if anything, life in society makes the individual even more free.  

The end of the quality of freedom in the human will is the achievement of the end, of the good, as the end of the qualities of knowledge is reality, truth.  Everything that helps the individual to be closer to his end, to his good, does not preclude his liberty: it realizes it, and it makes it ever more perfect.  Otherwise, commitment would be opposed to freedom.  And, according to the theory of self-determination, commitment fulfills liberty, in the same way that truth fulfills knowledge (it would seem unreasonable that we "lose" a little bit of our capacity to know every time we get to know something new; all the contrary, indeed).

There are important differences among the contractualist theories.  Still, they all coincide in this same conception of liberty, and its necessary limitation by the organization of individuals in society.  They also coincide in the crucial fact that society is not something given, together with the human nature, but something constructed by the free decision (maybe the last truly free decision) of individual human beings.  Society is constructed by consensus.  Therefore, it is not surprising that the laws that intend to regulate the relations of the individuals in society end up being also constructed, that justice ends up being a constructed concept.  

Note that these original theorists of contractualism are considered Iusnaturalist, since they start from a state of human nature.  They lived in a time when iusnaturalism was still unquestioned, and received the influence of authors like Grotius and Puffendorf, allegedly of a realist and iusnaturalist extraction, long before Hans Kelsen (1881-1973) explicated the theory of iuspositivism bringing it to its apex of theoretical elaboration and intellectual influence in the terrain of philosophy of law, which became the incontestable mainstream during the XXth Century.  

Contractualism strives to found the rights of individuals and the laws of society on that original state of nature; but not in the same way, but by way of continuation in one case, and by way of reaction.  Therefore, it introduces a fundamental split in the quality of nature.  On the one hand, the individual rights are derived from nature as an original command that continues in civil society; but the reaction against a non-social state of nature will be the cause for the limitation of those rights because the life in civil society will require of laws to maintain peace.  Those laws will be identified with justice (wherefrom comes a concept that I will stress later on, of justice as a slave of peace) and, therefore, justice will be identified with limitation of individual rights.

When carried to its ultimate consequences, contractualist theories necessarily make room to the most extreme ius-positivism, where the legal norms will be the ultimate foundation not only for social order but also for individual rights.  If society is not in nature—it is artificial—why would the laws that regulate it be found in nature?  Therefore, I see ius-positivism as the natural next step for contractualism, because contractualism contains the seed of ius-positivism.

It is very clear the influence that the works of Locke had in the incipient American political organization (as we can see in Thomas Jefferson), and that they continue to have a sustained impact in American political philosophers (as we can see in influential authors such as Robert Nozick).

Yet, I believe that, particularly around the subject of this work, Hobbes' ideas about peace and justice are the ones that resonate with renewed and stronger vitality nowadays, specially through the influential work of John Rawls about this issue.  I intend to furnish (or perhaps, to formulate it for the first time) the idea that Hobbessian conceptions of political organization and justice, taken in part by Rawls' Theory of Justice, are at the root of what Laura Nader denounces as the "ideology of consent" or "harmony ideology", that strives to "trade justice for harmony" within the context of the "movement to re-form dispute ideology in the United States" (Nader, 1993, p. 1).

Hobbes main concern is peace, since he considers it as the driving force behind the organization of people in political societies.  His concern is a direct result of a peculiar vision of men in the pre-social state of nature, which is, by necessity, a state of war of all against all.  And this understanding of the state of nature is a direct consequence of his conception of the materialist mechanicism that explains the behavior of man in society.

In successive trips to the "Continent", he became familiar with the philosophical and scientific developments of Descartes and Galileo.  Like Descartes, he was very interested in mathematics and thought that he could apply mathematical methods to cure the ills of a society on the verge of civil war.⁽¹⁸⁾

In one of those trips he met Galileo and was marveled at his theory about the relational movement of the bodies.  Under the spell of Galileo's ideas, he sought for a similar theory to explain the organization of people in civil societies, and conceived the idea that permeates his philosophy—the geometrical deduction of the behavior of men from abstract scientific principles.

Inevitably, hence, he will end up with a materialist and mechanicistic view of man and society, according to which men are subject to blind forces, which he erroneously attributes to nature. ⁽¹⁹⁾

Hobbes' understanding of the state of nature is fettered by his fixation with finding the mechanical principles that explicate the political organization of men in civil societies.  In this search, he resorts to the psychological axiom that man acts for his own advantage from which he deduces all the motives for human behavior.  

Thus, egotism becomes the scientific explanation for the behavior of men in the state of nature.  When people agree to the social pact they voluntarily give up that claim (of behaving always egotistically), self-imposing a limitation to their freedom that is not dictated by their nature, but it is rather meant to offset the nature.

Notwithstanding the apparent similitude with the principle that I enunciated earlier about the epistemological way to achieve the knowledge of the natural law, and that this way entails resorting to the end of nature, which is its own perfection —which is signaled by the desire and ultimate motive of every human heart: happiness—, Hobbes systematic egotism diverges in a quite fundamental way.  In the first place, it is a psychological deduction from the observation of behavior which, as I will try to explain later, is not a legitimate way to grasp the knowledge of human nature, because it disregards the free condition of that nature and overlooks the fact that different natures, with their correlate tendencies, coincide in the human person.  In a nutshell: the egotistic motive looks at the advantage of the individual, whereas the perfectionist motive looks at the advantage of the nature.

Hobbes tries to apply Ulpiano's classic definition of justice to the state of nature.  But this analysis leads him "to the inquiry, from whence it proceeded that any man should call anything rather his own, than another man's" (De Cive, Epistle dedicatory), which is congruent with the individualistic conception of the egotistic principle.

The individual advantage is sought in terms of movements of the heart (in an attempt at mirroring Galileo's theory of relational movement of bodies) of desire and aversion.  The utmost aversion is destined to death, in a powerful representation of a physiological principle: the animal instinct of conservation of own's life.  This instinct will be the basic desire that compels the individual to an endless search to secure definitively the means that will ensure the satisfaction of this desire.  And that means is power, which is never enough, because as soon as men get power, they need more power to secure what they have already gotten.

Consequently, there is not really justice in the state of nature, but a war of all against all that never ends because all men have access to equal resources of physical ad mental strength:

To escape this 'anti-natural' dissolution (paradoxically found in nature) a controlling power is needed.  However, itt is not of our interest now to expand on the foundation for monarchy and despotism in this philosophy, built by a man deeply troubled by the civil war that was bleeding his country.  But it is interesting to consider how the original theory of contractualism, which is still nowadays an unchallenged starting point for any political philosophy, subverted the traditional order of peace based on justice, to make it justice based on peace (or motivated by the need for peace).

The reason why men enter in such agreement to live in society and surrender the expectations of the fulfillment of their "natural" rights" to a sovereign is nothing but peace.  Peace and its requirements make society politically organized necessary.  Justice is once and forever made subservient of the notion of peace, is the means to achieve it:

Justice, moreover, is cut off from its source and the way is made free for the devastating thrust of ius-positivism.  Justice is not other thing but the very political organization, since there is a notion nonexistent in the state of nature:

The natural order, the order of the most pure realist and ius-naturalist tradition, according to which the "entrance"⁽²⁰⁾ in society is something intrinsic to human nature, it is due as a matter of justice.  Man lives in society in any hypothetical state of nature.  The justification for the organization of men in a civil way and under a political authority is the realization of the end that is contained in their sociable nature.

Whereas Hobbes focuses on peace, Rawls primary focus is justice.  But both agree on one fundamental premise that drives their theories away from a natural conception of justice towards a contractualist conception of justice.  

Both conceive a notion of individual freedom disconnected from any purpose beyond the individual, which is a common premise to all contractualist theories.  The concept of equal individual freedom is central to Rawls' theory of justice, and it is but a direct derivation from Kant's conception of personal autonomy, as Rawls himself explicates.  This autonomy is that quality according to which an individual chooses the principles of his actions as the most appropriate expression of his rational nature, his freedom and equality.  In other words, it renders the individual the exclusive designer of his own "project of life" with relation neither to the social whole in which the project is to evolve nor to any objective standard outside the subject's free decision according to which the moral quality of the project can be judged.

It somewhat insinuates that those that do not appear as self-sufficient and capable of self-determination are not really up to the mark that being a human behooves.  In a way, the consideration of the autonomous individual conduces the idea that the character of being human is somehow achieved through a process of personal self-realization; idea that resonates only too well with the 'competitivism' that fuels the dynamism of liberal capitalism and the pseudo-scientific explanations of Darwinian evolutionism.

Should these insinuations be taken with the seriousness that they deserve in my opinion, it is little wonder that a non contemptible trend of contemporaneous philosophical thought aims at denying the human condition to non-born babies⁽²¹⁾ or to decrepit old people.  And, in the field of conflict resolution, this trend can be observed in certain stream in the practice of mediation that tends to blame the victim, as in the example presented by Lerman (1984) of "mediators in wife abuse cases who try to get the wife to change the behavior that makes her husband beat her up" (Luban 1989, p. 416).

Aside from patently ushering a moral immanentism, this conception of the autonomous individual necessarily leads to a contractualist conception of justice, since, as the term itself —'contract'—suggests, it requires in the first place that the justice criteria be accepted by all the contracting parties.  

From these considerations it naturally follows the understanding of Justice as Fairness, which could be characterized as a pure procedural justice, as Rawls himself stresses in various occasions.  In fact, for a contractualist theory, the correctness in the formulation of the obligations imposed to the parties mainly depends upon the procedure followed for their determination.  Indeed, it primarily depends on whether those procedures have respected the autonomy (or self-determination) of the parties, so it can be said that the ensuing obligations have been self-imposed.

It is not very difficult to see how this outlook on society and justice inspires the very principles sustained by the conflict resolution discourse —more specifically, the discourse of mediation, which sta—nds upon the iron pillar of respect for a process that is managed by a neutral third party with the precise purpose of ensuring equal participation in it and consensual self-determination about the outcome.

Paradoxically, the greatest value in this discourse is too its greatest danger, because it unduly values the process over the outcome.  When an external, objective standard to measure justice is rejected, all that is left is process.  Thus, the justice of the outcome can only be valued according to the perceived fairness of the process: if the process has been consensually accepted by the parties as fair, then the outcome has to be just.

Empowerment, a largely debated issue in mediation, has been defined by Engram & Markowitz as "giving assistance to one of the parties so that both parties have equally valued input into the decision-making process of mediation." (quoted by Luban).  Luban sharply arguments against the use of this concept of empowerment as a criterion to judge the "quality of justice" in mediation, pointing out the fact that empowerment focuses on process rather than outcome.  Indeed, empowerment ought to be considered as an essential requisite in mediation should self-determination have its fair chance.  (And yet, many conflict resolution theorists deem empowerment as unethical behavior for a neutral party!).  Still, empowerment might not suffice to guarantee a just result (Luban, 1989), because it also impacts on procedures alone, providing no criteria for the evaluation of the result.

Rawls' theory is not exempt from a good dose of idealism; and finds its common ground with all idealisms in the obsessive quest for purity, of independence from the 'dogma' of reality —of the reality outside the mind, of course.

Idealism starts with an attempt at a 'pure' epistemology with Descartes, a theory of knowledge uncontaminated by reality.  It follows with a Kantian doctrine of the pure moral, with no link to any transcendent reality beyond the autonomous person.  Then comes Kelsen with a pure theory of law, uncontaminated by ethical precepts.  And finally, we have Rawls, attempting the purity of political systems, uncontaminated by either religion or ethics.  

Of course, regardless of the amazing sway that each of these doctrines has enjoyed and still enjoys, they have failed because none of them have found that purity, because they cannot be really pure in the way that is intended.  When we analyze the theories to the ultimate 'whys', we end up finding out that the dogma of reality has been surreptitiously replaced by a different dogma. And so, it is not surprise to find in Descartes a doctrine of innate ideas; in Kant, the categorical imperative; in Kelsen, the fundamental norm.  All allegedly self-evident truths which content ends up being more ideologically exploitable than the dogma of reality could ever possibly be.

And in Rawls... in Rawls we find reasonableness...

According to him, people will engage in the game of establishing the norms that will regulate the process of elaborating the social contract because a self interest in establishing certain principles of justice that guarantee that everybody will have equal possibilities to realize their own 'project of life'.

And to secure that the rules of the process will yield the right results they must be established by the consent of all parties in an initial situation that conforms to certain requirements: is what Rawls calls the original position. In his original work, he already introduces the notion of reasonableness, in order to get the acceptance of the requirements of that original position, as with the case of the veil of ignorance.  

In later works (Rawls, 1997), the 'dogma' of reasonableness will be extended in an attempt to fill a vacuum left by the Theory of Justice: the delimitation of the scope of justice.  Obviously, if justice is made by consensus, how can it include those that did not participate in the consensus?

There are possibly three areas in which the adoption of one or another philosophical world-view about human beings (persons) and society, will have decisive implications.  

In the first place, theoretical implications will arise at the time of selecting the tools and their aptness for an accurate and scientific analysis of issues such as justice, conflict, peace and conflict resolution, and the nature of their relationships.

In the second place, the design of methods of actual intervention will raise serious challenges to a minimalist approach to justice that toils to produce a minimum set of criteria made of "overlapping consensus" (Rawls, 1996).

And, in the third place, the actual application of the intervention methods thus designed will have to undergo the scrutiny of ethics, which principles will greatly vary according to the position taken in relation to the issue of justice.  For the sake of moral decision, a minimalist approach would not serve the purpose.  At the time of making the most honest moral judgement conscience will not be appeased with the average result of a statistical study, or a set of minimal contents upon which a more or less universal consensus has been reached.  What is worse, there is not usually enough time to wait for that sort of consensus or for the results of a statistical study.  

Nevertheless, at the hour of developing a particular approach to conflict intervention in general, or an approach tailored to a certain conflict, there is a more ample set of resources as to evaluate the validity of the basic notions that lay the foundations for that work.  Here is where the selection of the different tools becomes not only more plausible but also mandatory, morally speaking.  In the spot, within the urgency of the time-window to make the moral decision, we will use whatever is at hand.  If we do not have a hammer, we might as well use the wrench, rather than leaving something loose or waiting for a hammer and running the risk of the whole structure collapsing over our heads.  

With time enough for pondering over the selection of the most appropriate tool and a whole tool-box at our disposition, it would not be wise to insist on using the same one just because we are more acquainted with it.  We should not force the tools beyond its natural limitations, under penalty of arriving at distorted results.  

Social reality, with all the relationships and individuals that encompasses, the principles of justice that form the basis for its regulation and the conflicts that strain them, is far too complex as to venture any attempt at its comprehension with a one-sided methodology.

Issues such as conflict, peace and justice, and conflict resolution, are among those very capable to strain the possibilities of even multi-disciplinary approaches.  Therefore, we should not spare ourselves any pains in achieving the most conspicuous accuracy in the knowledge and recognition of the boundaries of each discipline, specially of that which we can claim as the object of our specialization.  We need to start by acknowledging a peculiarly scientific tendency to assert those boundaries much further than they really are, and then humbly resist the temptation of looking at every symptom exclusively through the lenses of our professional education.  

As the technologies that support the means of mass destruction advance, the need for a better discernment of the causes that lead to the use of those means becomes ever more pressing.  Thus, the study of conflict and the arts of conflict resolution is more and more becoming a discipline all of itself, which is positive in the sense that this trend is flowing from the recognition of the limitations of any particular science to get at the multifarious complexities and implications of these human realities.  This enterprise cannot afford to be secluded within the limits of any particular science, disdainfully rejecting the input from all the others.  Writing about moral exclusion, a concept intimately related to justice and conflict, Susan Opotow states:

More over, the curriculum of any comprehensive study of conflict and conflict resolution should imperatively include, not only an array of courses discriminating among the different areas of conflict resolution (such as labor, family, international, and so on), but also courses imbued in concepts borrowed from the appropriate sciences.  Thus, in the same way that curricula in schools of law often include subjects such as the history of law and the philosophy of law, conflict resolution studies should not be devoid of such elements.  As important as it is to study the psychological and sociological dynamics of conflict and conflict resolution, those dynamics cannot be properly understood unless we can put them within a conceptual framework that provides the building blocks for the socio-psychological theories developed; and those theories cannot be seriously taken unless they take into account some sort of factual (historical) reference.

In philosophy, the struggle for a theory of knowledge, or epistemology, "free" from all non-rational influences, inevitably opened the path to an idealistic construction that little by little tore off the connection between mind and reality, an indispensable nexus for the achievement of any sensible knowledge.  The abandonment of a realist philosophy led to immanence in the realm of psychology and ethics, giving way to the ideologized conception of a self-sufficient, self-norm-giving (autonomous) individual.

Speaking of personal motives to enter the field of social sciences, Louis Kriesberg rates high the striving to be objective and to be value-free (1999).  However, he 'confesses' how many of them "entered the social sciences in order to improve the human condition", and they "shared an understanding on what conditions needed improvement, such as ending racism and averting the threat of nuclear destruction" (1999, p. 7).  

Kelman explains how the field of 'peace research' underwent a common development with the behavioral science approach, and how there is no incompatibility between the suppositious objectivity of the latter and the explicit normative orientation of the former.  He argues that the commitment of peace research with peace as a goal "does not represent a commitment to specific ideological line" because "peace researchers do not subscribe to a particular position about the causes of war or a particular program for achieving peace", nor do they "agree on the conditions under which they would consider violence justifiable or on the priority they would assign to peace when it conflicts with other values" (1991, p. 250).  Of course, it would depend on what definition of ideology one upholds⁽²²⁾.

Going even further, Crosby and Lubin (1982) advocate the integration of scientific investigation and moral concerns.  Their view counters a claim of traditional science that objectivity and dispassion are desirable and possible (Opotow, 1990).  Opotow, citing Sommer, offers the example of the "complementary and synergistic relationship between science and activism in biological research.  As a practical matter, to conserve habitats of the species they study, biologists often become committed activists; their data serve both science and environmental advocacy".  Coinciding with Kelman, Sommer asserts that science and activism are also compatible in the social sciences.

The relationship between advocacy and scientific study is a particularly strong one when it comes to the issue of justice, as it is clearly showed in the growing field of human rights.  Scientific researchers' avoidance of moral questions may explain the curious scarcity of psychological research on this topic.  However, investigations of moral exclusion could contribute gains in both social justice and scientific knowledge (Opotow, S. 1990).

One of the criticisms raised against the methodology of social psychology stresses social psychologists' failure to respect the unbridgeable gap between descriptive and prescriptive propositions, what Tetlock (1998) denominates the "is-ought" controversy.  Nevertheless, the is side of the formula is not really is: I would rather dub it the "behaves-ought" controversy.  Why?   Because the proper subject of social psychology is, by reason of its methodology, circumscribed to the description of socio-psychological behavior, and not to the nature or essence of the behaving subject.  

As I explained in the previous section, for reason of the freedom in that nature, it is not licit to deduce nature from behavior; therefore, we neither can deduce ought, norm —law.  Unless, of course, we do not accept that quality of freedom, or we define it in restricted and deterministic terms.

Yet, there exists some relationship between the behaviors of the average human being and the natural law that orient them.  There is a tendency within every person to comply with the law of their nature, a tendency that is inscribed in their will and in their intelligence.  That is why some "laws" can be somehow unearthed and postulated through observation that can be generalized to some extent.

But we should not forget that humans encompass several natures within them, and each nature is equipped with their own set of tendencies.  These tendencies do not reside in, neither respond necessarily to, what is typically human: the intelligence.  And, in faithfully keeping with the principle of free arbitrium, each individual is free to decide to follow one or the other tendency.  No tendency, no power from within or from without the person, except the personal free will, is really capable to determine her most intimate decision.

Therefore, the conclusions extracted from the sole observation of human behavior would not be "universally" applicable.  They would not be valid for all men (as natural laws are supposed to be).  They cannot be properly considered as laws, since they do not intend to regulate human free behavior.  They are just descriptive conclusions deduced from the observation of certain human free behavior, and they are expressed in a somewhat general fashion.  

If honestly formulated, they should always admit the possibility for exceptions, and, as a matter of fact, the deduction strictly stated will include some clause of the sort of "in the majority of cases, particular men have behaved in such or such way, albeit some others have not".

When this homage to accuracy is not duly paid, which often happens in many scientific contexts, one is bound to incur into a very common error.

This error consists of the application to human behavior laws that are exclusive to non-free beings (biological laws, physical laws, etc.).  And this should not come at all as a surprise, since the methodology employed is identical to that of empirical sciences, whose subject is the behavior of non-free beings.  The immediate consequence is the "universalization" of laws for humans, as though humans were not endowed with a free nature, as though those "laws" applied to humans by necessity (as if it were not up to the individual person to conform or not to conform to them), and as though "laws" were indicative of what is most convenient for the full development (perfection) of the human person as human (again, with a universal character).

One major concern that has occupied the thoughts of many social scientists is the cultural and ideological insularity that seems to affect socio-psychological studies.

Faure (1995) makes a strong argument in pointing out the flaws in the psycho-sociological studies that stem from an 'American', 'parochial' perspective:

As an example, Gabrenya (1988) performed a content analysis on 3,305 journal references in 177 papers recently appeared in the Journal of Personality and Social Psychology (JPSP), the Journal of Cross-Cultural Psychology, the American Anthropologist, the American Sociological Review, and Ethos, which indicates that JPSP has an extremely low percentage of foreign journals cited (3% percent) and none of the other journals exceeds 10 percent.

Faure goes even further, somehow concerned not only with the cultural bias of the particular analyst, but also with the cultural bias — he talks about 'insularity' — revealed by the framing, in their very outset, of the social and behavioral sciences, which he perceives as isolated from outside contributions.

The insularity which Faure (1995) denounces, finds its origin in the history of the social and behavioral sciences in North America. According to him, social psychology has tended to isolate itself from outside contributions, and it has grown from an "Anglo-Saxon cultural base, on North American questionings, and on Western human and social values" (page 47).

An example of this insularity is given by the fact that the concepts, models, and paradigms of the behavioral sciences —according to Sarason (1981)— largely focus on the self-contained individual, that has thus become psychology's own subject matter (see also Bond, 1988; Gabrenya, 1988; and Pepitone, 1981).

Of course, this "self-contained individual" is an American one.  And "self-contained" responds to the concept of autonomous person.  This autonomous person is a self-sufficient individual that voluntarily constrains his freedom (a freedom understood in that peculiar way somehow equated with autonomy) to live in society by virtue of a contract or some other kind of agreement, without any constraint or moral reference from the outside.

"This construction — based on American values and concerns such as the individual subject, social intervention, efficiency, and adjustment — drives the research in an ideological direction." (Faure, 1995, page 49).  Hereof the perspectives and analytical categories developed in the United States by American researchers to structure a problem, define it, and organize it are not only culturally determined—hence biased—but they also respond to a certain ideology.

In this light I understand when Ali Banuazizi⁽²³⁾ says that the caveat about laboratory experiments on justice is that they pre-define the individual as the carrier of the notions of justice.  Thus, justice is defined in individualistic terms, according to the actor-subject of experimental research.  But even the individual is influenced by its society and by the experiment itself.  Another point that Banuazizi raises is the total absence of a moral judgement in the result of those experiments.  Instead, "in Islamic societies"—he explains—"justice is the communal-moral imperative that comes from outside the individual".

Even though he portrayed this dichotomy in typical "western-like" terms of individualistic versus collectivist worldviews, it resonated to me as the old dichotomy between an immanentist and transcendental understanding of the human person.  The immanentist approach encloses the individual within itself, and makes possible the notion of individual isolated from society.  Society is a limitation to the individual.  In Hobbessian terms, society is the minor evil, preferable over a state of "nature" where there is no law, no justice, and people live in a "constant war of all against all."

In transcendent terms, instead, society is a need for the realization of the individual person.  The individual is "transcendent" in that it finds its realization (perfection) in its relationship with others; in "transcending" its own self to reach for others to both complete and being completed by others.

This transcendence is the natural conduit for a realist world-view.  Immanence, instead, leads to idealism—to idealism that encloses the individual within itself, isolating it from the contact with reality.  Idealism does this, by limiting reality within the individual, or the individual's experience of reality.  What is real is not, but by being known by the individual, made by knowledge part of the individual.  Thus, the individual is the measure for everything, including, of course, the notion of justice.

Obviously, when faced with the issue of justice, a research focused on an autonomous individual and isolated from any moral guidelines will inexorably end at a practical conundrum.  It cannot yield but a subjective notion of justice.  Since individuals will always perceive justice within a context, the notion of justice thus obtained will necessarily be contextual.  Since experimental research deals with the individual subject, and struggles to avoid any contamination from pre-conceived moral notions, the concept of justice will necessarily be a subjective one.  

Now, a subjective and context dependent definition of justice becomes useless in the perspective of conflict resolution, which is a very likely reason to explain the reluctance to deal with the subject that seems to affect most of conflict resolution theorists and practitioners.  Most likely, the notion of justice of two warring parties will be different.  Their subjective perception of the issues where justice is brought to bear will be typically divergent; even more, the perception of the contexts within which the standards of justice are to be applied is, more often than not, diametrically opposed.  

This reality, equated with a subjective and contextual concept of justice poses an insoluble dilemma to the practitioner and it is anything but surprising that some have gone as far as to conclude that the issue of justice should be carefully avoided, for justice "has proven to be the obstacle to solving many longstanding, bloody conflicts" (Baird, 1999).  

Insofar as I understand, the science of social-psychology is built upon theories, usually sustained by "prestigious paradigms", as Turner puts it, which basic rule of demonstration consists of experimental research carried out whether in laboratory settings or through statistical findings extracted from "natural settings".  The data thus obtained is interpreted and analyzed from a heuristic frame borrowed whether from mechanistic structures of thought, from biological sciences or from liberal economics, which use approaches at its time borrowed from Newtonian physics (Faure, 1995).

Somewhat cynically, Kuhn (1962) described this research methodology "as a strenuous and devoted attempt to force nature into the conceptual boxes supplied by professional education" (page 5).  Since then on, throngs of works have contributed to a tougher or softer criticism of the methodology of behavioral sciences.  Authors already quoted, like Faure (1995), Gabrenya (1988), Malpass (1988), Messick (1988), Jahoda (1979), Sarason (1981), Bond (1988), and Pepitone (1981), focus their criticism on the fact that the immense majority of the research has been made in United States with people from the United States.  These authors, however, have remained as deviants from the mainstream of social psychology.  Their concern, albeit some of them—like Faure—mention ideology, is rather aimed at the cultural insularity.  Yet, Kuhn (1962) was talking not about cultural constraints, but rather about ideological constraints.  What he started sitting on the defendant's seat was the very methodology of behavioral sciences.

Bond (1988) observes that "research conducted in the United States informs us that we humans seek out information that holds promise of confirming our established constructions of reality".  Tajfel & Turner (1985) are not unaware that the outcome of their experiments can be misled "by some form of the experimenter effect or of the demand characteristics of the experimental situation" (Page 14) and they offer measures to reduce and even neutralize these influences.  But nobody can possibly neutralize the influence of the very assumption implied in the experimental methodology: that human behavior is determined and, therefore, its observation is able to yield rules that are amenable to generalization.  According to Faure, there is an ideology in the origin of behavioral sciences that is perpetuated by dint of metaphors embedded in cultural meanings.  "Research can transform reality in surreptitious ways, through manipulation of the subjects", which is nothing but ideology in action.

The analyst's approach can be easily ideologized.  Parting from an ideological standpoint, the concepts of both person and society will most likely result in an ideologization of the concept of justice.  Since justice thus explicated cannot be but subjective and contextual, it easily follows that justice cannot be sought as a per se value and all that is left are procedural mechanisms to maintain social order, or the status quo which is in the essence of the concept of ideology.

The most interesting implications that derive from the assumption of one or another philosophical stance on the issue of justice are the ones that should (or should not) arise when the practitioner is faced with the typical ethical dilemmas of the practice of mediation.  In this realm is where the voiced values of 'objectivity' and 'neutrality' are put to the test.

Only when we consider justice in the original way, as a virtue, the relationship between this concept and ethics appears to our intellectual contemplation in the fullness of its meaning.  As we saw in the first section, Ulpiano's definition refers to justice as a quality of the person, the virtue of being just.  Justice is defined as the attribute of the just person, that who has a constant and steady will, namely a disposition, to give everyone his own.

Human virtue is defined as a good operative habit, and is one "which renders a human act and man himself good" (Ethic. ii, 6, Summa II, 2, q. 58, a. 3).  Good is understood as adequacy to the ultimate end.  What is deemed adequate to attain the ultimate goal is perceived as good; what is deemed inadequate to attain the ultimate goal is perceived as bad.  But not every single action is directly pursuant of the ultimate goal.  At the threshold of each particular action the mind shows the individual the suitability, not only of the action towards its specific goal, but also of the immediate goal towards the ultimate goal, and commands the will to pursue it or not.  The mind does this in the form of a verdict: "thou shall" or "thou shall not".  It is the intellect in action, in moral action, wherefrom it is termed 'practical reason', and it is called conscience when it dones the judge's robe to give forth this verdict.  The will, what determines the person to act, freely chooses to follow or not that verdict and the habit can aid the will either to follow it (virtue) or to deviate from it (vice).

When the habit is in the will it is called moral virtue; when in the mind, intellectual virtue. A virtuous man, morally speaking, will be that who is accustomed to follow the voice of his conscience.  A virtuous man, intellectually speaking, will be that who is accustomed to go through the effort of supplying the conscience with the information needed for each moral decission.  In other words, the intellectually virtuous man is always open to know the truth about the nature of things and ready to gather enough intellectual evidence about the facts surrounding the things involved, in order to apply whatever nature's laws are applicable in a proper way.  

The virtue of justice stands out among all other virtues since, in a way, it condenses and coordinates them all.  Particularly, if we understand ethics as the rule for human behavior in interaction with others, there is no doubt that justice is to be considered the king of virtues.  But even considered at the individual level, inasmuch as and to the extent to which we understand the ultimate end of personal perfection as intrinsically transcendent, justice is also the 'moderator' of all other virtues.  Virtue is found in the middle just, and that middle just is 'moderated' by the virtue of justice, the only moral virtue that cannot be found in excess; and cannot be found in disorder, since it is, precisely, the ordering virtue.  It is impossible to be "too" just.  And, as long as the distributive principle lies on a solidly objective criterion which, by definition, works as equalizer since it springs from nature and applies equally to all subjects encompassed within that nature, there is no room for a "disorderly justice".  It is contradictory, from a realist, iusnaturalist perspective, to be more just towards some people and less just towards other people.

Even from a Christian perspective, where in all other ways the theologal virtue of Love (or Charity) occupies the unquestionable first place, justice withholds its leading role in orienting the way and order of that basic Christian obligation.  Justice provides order to Love, and so the saying goes that "charity properly understood starts at home"⁽²⁴⁾.  And it is not surprise that in the Bible the saint person, the one who achieved the summit of all virtues, is also called the "Just man." Aristotle beautifully stated that "the most excellent of the virtues would seem to be justice, and more glorious than either the evening or the morning star"⁽²⁵⁾.  Cicero wrote, "of all the virtues justice is the sovereign and queen"⁽²⁶⁾.  And St. Thomas Aquinas is conclusive on this when he declares that "if we speak of legal justice (distributive justice), it is evident that it stands foremost among all the moral virtues, for as much as the common good transcends the individual good of one person"⁽²⁷⁾.  But, even if considered as particular justice (commutative justice), it excels the other moral virtues for two reasons:

According to philosopher Gilbert Harman (1977), moral nihilism is "the doctrine that there are no moral facts, no moral truths, and no moral knowledge" (p. 11).  This is the dividing line between ethical theories.  The downright acceptance of the existence of moral facts, moral truths and moral knowledge will locate a theory on one side of the line.  All sorts of moral relativisms will be situated on the other side, whether more or less inclined to the nihilist extreme.

There is a subterfuge for nihilism that is called agnosticism, which basically holds that even if the possibility for the factual existence of moral truth cannot be positively denied, there is no way to attain its knowledge.  It is almost needless to say that this is but an euphemism: if the possibility of attaining the knowledge of something is denied, we do not need to go too far to understand this denial as equivalent to banishing that something to the realm of theoretical and useless hypotheses.  And ethics is eminently practical.  Moral cannot be understood but as orienting human behavior.  A purely theoretical ethics is simply a contradiction in itself.

Nevertheless, this moral agnosticism holds a tremendous sway on our contemporaneous intellectual world and the field of Dispute Resolution is far from being an exemption to this rule of moral agnosticism's influence.  We can perceive this influence, particularly in the endeavor to elaborate a concept of neutrality as a struggle to avoid any influence on the outcome.  Since nobody can be sure about the truthfulness of any moral knowledge, it ensues that every mediator should carefully refrain from influencing an outcome from a 'subjective' ethical perspective lest her point of view is not the correct one.

In the wide world of conflict resolution, two areas stand out with curiously similar characteristics in this respect: family disputes and the international arena.  Relationships within these contexts are more vulnerable to abuse from the powerful party.  And the explanation for this might be found in the absence of a superior authority.

This assertion does not seem to necessitate further explanation in the case of international disputes⁽²⁹⁾.  In spite of the latest propitious advances in setting up an international criminal court to prosecute crimes against humanity, international law and international organizations are still far from scantily being more than a feeble moral influence.

In the case of the family, the laws traditionally—and understandably—treat it as a social unit; less and less so as a political and economic one.  Traditionally, whatever happened in the intimacy of a family was considered a private matter and it is to hope that it thusly continues, since it is an essential element for the growth of the family as a whole and for the growth of each of its members.  Yet, even if necessary for its development, the familiar privacy should not be a reason to let go unchecked abusive behavior that threatens the very same values that are sought by protecting privacy.

Likewise, the sovereignty recognized to nation-states should never be a reason to deny the protection owed to the human rights of individuals and groups of individuals within the nation-states (or without any nation-state).  It could not be otherwise, since the recognition, affirmation and promotion of those rights are the very purposes for acknowledging such sovereign quality to nation-states.  And this clearly refers us back to the question of moral inclusion and the scope of justice that we were considering in previous sections.  The urgency of the call for the protection of human rights at all levels makes it suicidal the notion that we should have to wait until the 'civil' societies compromised are included in a scope of justice achieved by consensus.

Interestingly, the most acrimonious criticism to the practice of alternative dispute resolution in domestic grounds has found an easy target when it comes to deal with family conflicts.  In his piquant article "Against Settlement", the Yale Law School professor, Owen Fiss sharply criticized ADR (Alternative Dispute Resolution).  Among other arguments he pointed out how "many of the factors that lead a society to bring social relationships that otherwise seem wholly private (e.g., marriage) within the jurisdiction of a court, such as imbalances of power or the interests of third parties, are also likely to make settlement problematic" (Fiss, 1088-89).

According to Grillo (1991), people vary greatly in the extent to which their sense of self is "relational"—that is, defined in terms of connection to others. "If two parties are forced to engage with one another, and one has a more relational sense of self than the other, that party may feel compelled to maintain her connection with the other, even to her own detriment" ( p. 1550).  In other words, the party with more "relational sense of self" will show more potential for inability for self-determination, hence, it is more likely that she will be in disadvantage in a mediation.  Since, according to several researchers women are more prone to have a more relational sense of self than do men, it follows that mediation has the potential to harm women.

Although Grillo's most severe criticism is directed against compulsory mediation, still she observes that, even if voluntary, mediation can be coercive for it may be dictated by an unequal power balance in the relationship as it existed prior to the mediation.  However, she suggests that, when mediation is voluntary, and the parties decide to participate on their own, and then physically appear at the sessions, "that decision and their continued presence serve as a rough indication that it is not too painful or too dangerous for one or both of them to go on" (1991, p. 1550).  I am less optimistic than Grillo: the decision of participating and their continued presence in the process might also serve as an indicator that it would be too painful or too dangerous for one of them not to go on.  Typically, they would already be involved in painful or dangerous relationships, and, if they do not abandone them it is very probably for fear that the consequences might be more painful or more dangerous.

Other critics suspect that ADR programs simply "cool out" legitimate grievances and thereby perpetuate a system that is fundamentally unjust.  Luban makes the interesting distinction between justice within the system and revisionary justice.  "The former treats the social world we live in and the constraints it imposes as given, seeking justice within the terms defined by that social world and those constraints.  Revisionary justice measures justice according to a more detached or even utopian standard, abstracts from constraints imposed by the system as it is currently constituted, and subjects the social world in which we live to assessment and criticism" (Luban, 1989, p. 384).  And then he goes on to argue that the better ADR systems are at resolving disputes justly 'within the system', the more effectively it will cool out legitimate grievances and perpetuate the system, which may itself be unjust according to a 'revisionary' idea of justice.

Analyzing voluntary non-union grievance procedures instituted by employers, Edelman states that they were motivated to introduce them primarily to buffer themselves from normative and legal encroachment by the outside world (1985).  In such a case the grievance procedure is intended to deflect criticism and cool out discontent.  "Actually removing the source of the grievance is at best a secondary aim." (Luban, 1989, 384).  Cases of this nature are of those that provide a fertile ground for the criticism that assigns to alternative conflict resolution the opprobrious blemish of being a "coercive mechanism of pacification" (Nader, L. 1993, p. 1).

Self-determination is the cornerstone for the theory and practice of mediation.  The process of mediation is designed so the parties can reach on their own a solution to their conflict.  To this end, neutrality in the third party is considered a key element in the whole process, and this neutrality is typically understood as an obligation to refrain from exerting any kind of influence in the outcome of the process.

Moore (1987) writes that, "in order to derive mutually satisfactory and acceptable decisions from negotiations, all parties must have some means of influence, either positive or negative, on other disputants at the table (...).  If the power or influence potentials of the parties are well developed, fairly equal in strength, and recognized by all disputants, the mediator's job will be to assist parties in using their influence effectively while producing mutually satisfactory results.  If, however, influence on each other is not equal and one party has the ability to impose an unsatisfactory settlement on another, an agreement that will not hold over time, or a resolution that will result in renewed conflict later, the mediator will have to decide whether and how to assist the weaker party." (p. 34)

As I mentioned it earlier, this decission to assist (empower) the weaker party is subject to considerable controversy in the field.  

Handler (1986) relates the example of mediators working for the state on disputes between parents of handicapped students and school officials trying to place the children in special education programs.  Some of these mediators attempted to inform the parents of their legal rights, see to it that they received more than perfunctory pro forma hearings, and help them become more sophisticated and knowledgeable about dealing with the bureaucreacy.  In this way the mediators influenced the outcomes of the processes in a way that was more satisfactory to the parents but less satisfactory to the officials.  The mediators were fired.

A sizeable part of the conflict resolution doctrine would consider the firing of the mediators as adequate based on the fact that they 'lost their neutrality', for mediators should not do anything to influence the power relations of disputing parties, following the definition of neutrality as refraining from influencing the outcome (Bellman 1982; Stulberg, 1981).  

Other part of the doctrine would have a different opinion.  Thus, Albie Davis and Richard Salem tell mediators that, in case of power imbalances they should "compensate for low-level negotiating skills," to "interrupt intimidating negotiating patterns," and to "watch to see that one party does not settle out of fear of violence or retaliation." And, ultimately, "if the mediator has exhausted available techniques for balancing power and the imbalance persists and is undermining the basic objectives of mediation, the mediator should consider terminating the session." (Davis & Salem 1984, pp. 17, 25).

What this side of the doctrine is saying is that there exists a moral obligation on the part of the practitioner to question what many would take as an assumption: that parties are capable of self-determination.  A power imbalance of such a breadth that raises doubts about the possibility for self-determination to take place defeats the very reason and purpose of mediation.  Therefore, it is not surprising that Davis & Salem suggest that "the mediator should consider terminating the session" because "parties may seek resolution of their disputes, but we can't be sure that they have really consented to the process they use for settlement" (Menkel-Meadow, 1995, p. 2671).

Nevertheless, the fact alone that there exist power imbalances does not warrant an intervention to 'even the scale': there needs to be some sort of abuse of that power for the purpose of the negotiations.  In such cases the function of neutrality is, precisely, to neutralize the illegitimate utilization of a power difference, so a real self-determination can be guaranteed to the maximum extent possible.

Therefore, there is a judgement that needs to be done in order to engage in this line of neutralizing moves: a judgement to decide on the quality of the utilization of a power leverage as abusive and dangerous to the self-determination of the other party.

But this issue raises a highly interesting array of questions: what is to be considered as 'abusive use of power'?   What is the ultimate sign that will indicate the third party to intervene and, eventually, to terminate a session?   What if after making all neutralizing moves, the weaker party shows no signs that he or she is being empowered and seems amenable to come to terms with a settlement that we deem as unjust?   What can those neutralizing moves possibly be?   A party might be showing "intimidating negotiating patterns", but it is possible that they have no impact whatsoever on the other.  Should the mediator intervene anyway, just in case?   And, to me the most interesting question: should the mediator intervene even if he or she thinks that the party abusing power is on the side of justice and the settlement that is being 'imposed' is fair?   Or, formulating the question from the opposite angle: should the mediator intervene to empower the weaker party even when his/her claims are utterly groundless and unfair?

It seems to me that the natural tendency would be to intervene only when the weaker party reveals signs that is being affected and he or she might agree on an unfair outcome. If "one party has the ability to impose an unsatisfactory settlement on another, an agreement that will not hold over time, or a resolution that will result in renewed conflict later, the mediator will have to decide whether and how to assist the weaker party." (Moore, C. 1987, p. 34)

Some theorists argue that a mediator has the duty to create just settlements and must therefore help empower the underdog to reach equitable and fair agreements (Haynes, 1981; Laue and Cormick, 1978; Suskind, 1981). Of course, for this ethical position to be conceivable in the first place, an objective notion of justice needs to be upheld since "it is virtually impossible to frame these questions in value-neutral ways..." (Menkel-Meadow, 1995, p. 2671).

Therefore, there is a purpose for the intervention that goes beyond the mere empowerment so as to secure the self-determination of all parties involved: the ultimate purpose is to "reach equitable and fair agreements" or, as Moore puts it, to avoid an "unsatisfactory settlement (...), an agreement that will not hold over time, or a resolution that will result in renewed conflict later", which, in my view, are all consequences of an unjust settlement, or a settlement that does not deal with the fundamental and originating injustice in the conflict⁽³⁰⁾.

Taking into account the differential emphasis on either process or outcome we can perceive an important distinction among the supporters of intervention.  Logically, those who put the emphasis on fair process will advocate the use of leveling measures in order to secure a certain process, whereas those who put the emphasis on fair outcome will advocate the use of those measures in order to secure a certain outcome.  Consequentely, the question about whether the intervention should take place if the abusive party is perceived as 'fair' will be answered differently depending on this position regarding process and outcome.

Davis and Salem would be in the first group because they limit the validity of interventions to cases where self-determination is in danger in the process, regardless of the likely outcome.  From this perspective, mediators should only use their influence to make sure that parties maintain control of decision or outcome (Bush & Folger, 1994).  In this case it would seem that the question would be answered affirmatively: even if the powerful party is judged as being just—and, therefore, the most likely outcome will be just—interventions should take place anyway, because the purpose of the intervention would be to protect the capacity of self-determination and not the fairness of the outcome.  

This position would be compatible with a consensual notion of justice, or a Rawlsonian view of justice as procedural fairness. Yet, when the extreme decision of terminating a process is contemplated, and eventually decided, it is very difficult to see how this determination would fit within a consensual or procedural notion of justice.  Why?   Because since the moment that an inability to reach consensus is acknowledged, it is also being admitted that there are situations where the process alone is insufficient to reach justice.  And, even if theoretically possible, it is difficult to imagine that the practitioner who abandons a process does not do it because of a conviction about the unfairness of a likely outcome.

Another instance that raises questions about the compatibility of this 'interventionist' approach with a consensual model of justice is when we consider possible answers to the question about what the neutralizing moves (or empowering measures) might be.  To this end, it is important to "distinguish between a mediator assisting in recognizing, organizing, and marshalling existing power of a disputant and a mediator becoming an advocate and assisting in generating new power and influence" (Moore, C. 1987, p. 35).  

It appears fairly clear that "becoming an advocate and assisting in generating new power and influence" is going beyond the reasonable limits of the profession and inconsistent with the neutral's role (Luban, 1989).  But this is quite a fine distinction, and it is probably the weakest part of the interventionist model for mediation neutrality as a reflection of consensual theory of justice.  Supporters of the non-interventionist model will argue that the line between helping a party use his/her power and creating new power is so thin and imperceptible that, for the sake of the purity of the process, mediators should refrain altogether from any kind of intervention, lest that line is crossed and the process defiled.

As for the possible leveling measures, Fisher & Ury (1981), the authors who coined the phrase 'principled negotiation', suggest that standards of fairness should be brought to bear⁽³¹⁾, and it seems difficult to imagine that all possible 'standards of fairness' are implicit within the process of mediation alone.  However, it could be hypothetically argued that they are implied in the ground rule of respect for self-determination and thus, still a consensual notion of justice is what is being taken into account.  But, isn't the judgment about whether self-determination is being imperiled a subjective call in itself?   What if the allegedley abusive party does not agree with that judgement?   Could it not be argued that in such case his/her self-determination is being violated?   Would it be possible to agree on ground rules that contemplated every single situation that should be considered as violating self-determination?   Of course not!

And a very likely touchstone that will reveal the real philosophical affiliation of the practitioner (in relation to an objective notion of justice) will be the case of doubt: how to behave when there are but just suspicions that self-determination is not being fully respected.  If the answer is: "well, it depends on the likely outcome", then there are no doubts about the realist-objectivist affiliation of the practitioner.

Therefore, then again, I do not see it possible to sustain interventionism of any kind without supporting an objective-naturalist-realist conception of justice that recognizes criteria of fairness beyond the mere process.

On the pragmatic side there are those who argue that "if mediators ignored the 'real world' and attempted to base all settlements on reason and brotherly love, stronger parties would obtain little benefit from mediation and would soon avoid it" (Honeyman quoted by Luban, 1989, p. 398).  This is what Luban calls the "incentives argument", and I see it as a powerful one that will put the ethical principles of the mediator to a difficult test.  

To a large extent, providers of professional mediation services depend on satisfied customers for the continuation of their careers.  And this is applicable not only to domestic mediation, but also to cases of international and intra-national conflict involvement, when continued funding for academic projects of so-called track-two diplomacy, might be jeopardized by the lack of interventions resulting from insatisfaction.⁽³²⁾

These are tough decisions to be made, and the subjective, consensual or context dependent notions of justice offer an easy way out of the dilemma.  However, the chances for the field to stand the barrage of criticism from the viewpoint of social justice—and other fields—greatly depend on the honest and courageous stance of scholars and practitioners of ADR when faced with these ethical inquisitions.

In my view, then, the kind of judgements that need to be made cannot stand on an idealist philosophy that puts the subject as the modeler of concepts of truth and justice.  If there is no belief in the existence of an objective notion of justice or, to say it from the opposite angle, if the belief that all notions of justice are ultimately subjective, dependent on consensus or context, there is no valid argument to intervene in a process where self-determination plays a paramount role.  And we will have to agree with Luban's notion that the better ADR works, the worse it serves the value of justice.

As with the fallacies arising from all idealistic philosophies, the traditional non-interventionist conception of neutrality falls prey of the same contradiction.  When trying not to become an advocate for the weaker party, particularly in very lopsided conflicts where we perceive a patent injustice, we may inadvertently become advocates for the status quo and, therefore, for the stronger party.

It is surprising to verify that there are authors who cynically defend that the mediator should become an advocate of the powerful party since "pressing the weaker party at what is aptly called 'crunch' time is not evidence of bias, because it is necessary to recognize differences in power" (Honeyman 1985, p. 146).⁽³³⁾

Generally speaking, injustice does not warrant a moral attitude of neutrality.  In the facts, neutrality implies acquiescence with the status quo and, in some way, it allows its perpetuation.  During the process of the Truth and Reconciliation Commission (TRC) "the medical Association of South Africa (MASA), the physicians' 'trade union,' confessed complacency in opposing apartheid policies and admitted that in trying to remain 'neutral' it had served to maintain the status quo".  Tutu tells an ⁽³⁴⁾almost identical example, albeit not from a presentation before the TRC: "...then there were the many so-called charismatic or pentecostal churches that had tried to be apolitical, though they must have been aware that their imagined neutrality in reality supported the unjust status quo." (1999, p. 275).

Of course, ethical principles are ideals per se. Since they are meant to guide behavior, they cannot be deduced from the observation of behavior. An attempt to draw moral conclusions from people's behavior would be backwards. It would be methodologically incorrect.  As the Spanish saying goes, it would be like "putting the cart before the horse".  Instead of moral standards guiding people's behavior, the design of moral standards would be guided by people's behavior.  Ethical behavior is an ideal that people need to struggle to get to.  Instead, positive laws are a starting point: we could characterize them as the minimum ethical requirements for life in society.  Therefore, ethical behavior is not a given.  It can be more or less generalized, and it can certainly be put to the test in occasions such as of violent conflict.

In making some ethical considerations about interventions characterized by aggression and violence, Opotow points out that interveners "are also bystanders to past, current, and potential harm" (1999).  In this respect it is apropos to raise the question as to whether the profession grants the practitioner a certain sort of immunity against the moral obligation to denounce injustice, in a fashion akin to that of the practice of medicine.  A physician might argue that the continuation of her services to the community depends upon her silence regarding the injustices that she witnesses in her practice.  However, in the example just mentioned, the Medical Asociation of South Africa did not seem to feel exempted from this moral obligation to denounce injustice.

At least, practitioners intervening in violent systems must be sufficiently skilled at recognizing violence, coercion, and oppression in relationships, also taking into account that "aggression and violence are social issues embedded in larger social issues: poverty, human rights, land reform, political repression, and economic privation.  Effectively addressing aggression and violence not only considers direct violence, but also considers social injustice" (Opotow, 1999).  And they should always have in mind these wise words: "The 'good intentions' of third parties, however praiseworthy, are not sufficient to make an impact in conflict resolution" (Azar, p. 26).  But, even worse, some interventions might even be harmful for the conflict.  If we agree with the analysis that conflict arises from injustice, then the deleterious effects that an allegedly 'neutral' disposition might have over a particular conflict become more than clear.

If there is no exemption conferred to the profession the call of moral duty might prevent practitioners from intervening in certain kind of conflicts.  If there exists such a thing as a right for the oppressed to be recognized in their oppression and to have the injustice that subjugates them denounced, and such a credit is due by the human public in general in its 'bystander' condition, then the justice as virtue will be claiming the man—whether it be professional of ADR, politician, head of state, journalist, or whatever—to live up to the measure of being human.

The ultimate measure—resignation of the process or downright refusal to intervene—is an answer that nobody can legitimately give to anybody else.  What can be said is that there is a moral obligation for the inquisition: "when (if ever) is it appropriate for a mediator to facilitate a conflict settlement between adversaries who differ vastly in strength and resources?" (Kriesberg, 1999 p. 7).  When is it ethical, and when does it stop being ethical?   A generic answer could be given: when the prospective benefits arising from informal processes of conflict resolution are, in the conscience and conviction of the practitioner, overcome by the actual danger of doing harm.

To stress the danger of doing harm through a neutral third-party intervention I do not find better words than these ones, by Prof. Opotow:

Treating over the potential of track-two diplomacy to deal with protracted social conflict, and in particular with the "Problem Solving" approach, Edward Azar cautioned that "it will not be useful for all conflicts" and advanced some criteria to help evaluate this difficult decision:

But, if we acquiesced with the theory that conflict follows injustice, we would be left with no conflicts to mediate! Of course, this is not the case.  As I view it, the bulk of interventions in what are commonly perceived as conflicts, but are just misunderstandings, happen in a preventive way.  Misunderstanding or poor communication are common human problems, that eventhough do not constitute conflicts by themselves, they do not preclude injustice either.  On the contrary, they are fertile grounds for injustice to germinate, and then the problems become conflicts.  Early intervention may certainly prevent the conflict from happening at all.

From what I said so far it could seem that whenever there is a conflict and the parties are patently unequal in power, the intervention of the conflict resolution practitioner is almost impossible to occur or, at least, it is seriously jeopardized by her ethical obligation to denounce injustice.  In fact, like Azar and Opotow, I am arguing that there are some conflicts where mediation as it is generally understood or certain conflict resolution approaches are not only not appropriate—they might even worsen the situation, leaving the resolution of the conflict even further away than before the intervention.

Nonetheless, there are many cases of great power imbalance and still certain approaches can be applicable and useful.  But there is a condition given by the attitude of all the parties involved in the conflict.  As long as there is a reciprocal commitment to remain open to the possibility that, through a cooperative exchange of information and points of view, it can be concluded that either or both of them might be responsible for the injustice that originated the conflict, there is enough ground to proceed with the intervention.  Certainly, this is incompatible with processes that deliberately rule out the consideration of justice related issues, history or past grievances.  

And to avoid having a process bogged down by endless discussions, it is important to tailor interventions according to a theory on justice and the way it relates to conflict and conflict resolution.

The practitioner too should remain open to the possibility that there is no sincerity on either party about their intentions to deal with the justice issue.  Whenever both the injustices and the power imbalance are patent and the powerful party refuses to deal with the issue of justice it is probably the time to heed to Hallie's suggestion:

If that was the case, we should honestly admit that the opportunity for mediation is lost.  In such cases forms of pressure and coercion will be the best way for an honest stance for conflict resolution.  In other words, to be complete and coherent, all different approaches to conflict resolution should contemplate the possibility of termination of the process.

Peace and justice are two very much intertwined concepts.  They appear together in too many slogans, in too many names of good-willed organizations; we are too used to hear and use those concepts together in the same sentence.  But, are we fully aware of what we really mean?   What is peace?   What is justice?   What is the real nature of their relationship and its implications?   Is peace possible without justice?   Is justice possible without peace?   Is justice really the basis for peace?

As we discussed previously in this work, individualistic conceptions about man and society lead to a subjective, contextual—relative, in the end—notion of justice.  Thus, peace and order in the human society cannot be established upon a notion of justice, and have to be sought as per-se values, since notions of peace and order are applicable to everybody, whereas the subjectivity of the notion of justice makes it illegitimate to be applied to everybody.  On whose conception of justice should it be based otherwise?

The autonomous understanding of the individual and its correlate contractualistic outlook on society led some theorists to either plainly reject the possibility of justice as foundation of society (Hobbes), and others to strive for the making of a shared vision of justice (Rawls).  In either case, the concern for the real, objective notion of justice is carefully overlooked or, even worse, the mere possibility of its existence is denied, whether explicitly or implicitly.  As I said before, there are the agnostic ones as well, those who reject the possibility of achieving a knowledge of what that objective concept of justice is which, in practice, has the same implications as denying its existence.

At all events, the logical conclusion of these ways of thinking is that justice is held a slave of peace.  Justice thus becomes a mere instrument for the preservation of peace and order.  Nowadays, when we hear the word justice, it is usually with reference to Rawls' notion of 'justice as fairness' (procedural justice) or, even more narrowly, to the administration of justice.

Instead, a realist outlook, based on the premise of an existence of natures and the epistemological assertion about the feasibility to attain their knowledge, would lead us to determine a law-emanating property in reality.  The realistic path also leads us to a natural conception of human sociability: society is an exigency embedded in nature, it is a debt and a credit originated in human nature, and not an autonomous decision of the individual.  The coming together of individuals in a society is, thus, dictated by principles of justice.  In other words, the foundation for social life is justice.

Now, the kind of social life required by principles of objective justice is a harmonious one.  The definition of society itself encompasses the idea of peace.  To live socially implicates to live in harmony.  Societies are not bound together by conflict; societies are bound by a dictate from human nature, a dictate that has to be followed—freely, of course, since freedom is another typically human characteristic—as a matter of justice.  The peaceful life in society is a credit owed to the individual person, that finds in social life the conditio sine qua non for the attainment of his realization; and this credit is due by everybody else.

Human beings, according to this philosophy, find in themselves a twofold dimension—an individual dimension and a social dimension.  Alasdair MacIntyre sustains that each individual is the bearer of a particular social identity, idea also implicit in the human needs theory as it has been applied to conflict resolution (Burton, J. 1990; Fisher, R. 1990; Mitchell, C. 1990).  The social dimension in the human person is not something subservient neither to the individual free decision, nor to the factual living in a society.  As I exemplified in a previous section, if a mass of matter is suspended in space, failing forever to be attracted by a greater mass, does not mean that gravity does not concern that particular mass of matter; that a singular animal never procreates, does not mean that procreation is not in its nature.  That a hypothetical individual person decides not to live in society does not mean that sociability is a free decision.  It only means that: that an individual-social person has the ability to live outside society, not that his nature is not social any longer.  The sad verification that some people some times do not act humanly does not mean that their humanity is a matter of free decision; it only means that, because humans are essentially and necessarily free, they can act against their nature.  But they can never entirely forsake their nature.

In parting with the realist, ius-naturalist tradition, modern European philosophers failed to realize the fundamental unity that holds together this many times seemingly incompatible double dimension of humans as personal and social beings.  Since then on, the development of philosophies about man and society have been subjected to a dialectic fluctuation between the two poles of the equation.  Some make the individual dimension prevail with detriment to the social dimension, which enacts the most individualistic conceptions of social life.  Others lean towards an emphasis on the social dimension, albeit failing to realize that this dimension is not 'given' to the individual by the society or the social life but it is imprinted in the personal nature of the individual.

Victor Turner brilliantly puts in a nutshell these two opposing positions: "Extreme individualism only understands a part of man.  Extreme collectivism only understand man as a part" (1986, page 84).  Extreme individualism is the consequence of an one-eyed vision of the human person that considers the individual person as a self-sufficient, self-norm-giving (autonomous) unit.  From this position it follows that whatever the individual 'gives' to society is considered a loss, it is a self-imposed limitation to the individual's freedom dictated by the original social pact.  Extreme collectivism, on the other hand, places all the emphasis in the community, overlooking the fact that the community is within the individual already.  If society is within the individual, the individual cannot be a mere part of it.  Here it lies the paradox: the individual is part of the society, but society is somehow part of the individual.  But we should never lose sight of the fact that society flows naturally from the individual and to the individual: it does not stand on its own.  The individual cut off from society is a self-destructive force.  The society that treats individuals as mere parts that can be discarded for its sake is a self-destructive society, is an uprooted society doomed to starve, dry out and die.

In the last decades we have witnessed a dramatic advance towards the understanding of the integration of human beings in the context of the natural world, understanding 'natural' this time in the sense of not artificially constructed.  Many people are nowadays much more aware of the dangers for humans themselves involved in the exploitation of natural resources devoid of any concern for the 'nature' (now in the sense of law-emanating essence).  It has taken some foresight and a lot of actual damage already experienced in the standards of quality of human life in our industrialized world to accomplish this realization.

With much more reason there is a great danger, and an actual damage, when the nature of the human being is abused and its inherent rights disrespected.  We need to rediscover the integration of individuals, not already in the context of the whole nature, but in the context of its closest kinship: the other members of its own species.

The duality individual-society in the human person creates a tension that threatens to split its essential unity.  Opposing tendencies within the human psyche reinforces this tension.  One tendency follows the law of nature: it is a rational voice that finds in nature the commands of justice and solidarity with the other members of the species.  The other tendency follows the voice of the animal instinct to look narrowly and selfishly after the interests of the individual with shortsighted disregard for the interests of the community.

Obviously, I should advocate for the first voice.  Not because of Kantian imperatives to do good unto others, but because the interests of the community are the individual's interests.  Therefore, in a certain way, the behavior mindful of the imperatives of social justice is not disinterested (as long as the quest for perfection—or happiness, which is the same—can be properly considered an 'interested' pursuit).  As Rawls says, "everybody else's good is part of my own good".

Of course, the immediate consequences might not be susceptible to appreciation in a superficial glance.  It is when we take the big picture and the long term consequences into account that we are able to appreciate to what extents our acts of solidarity are a benefit to ourselves as individuals (individuals who are essentially social, indeed).

In the end, we all share essence.  If I were to exhaust my human essence in my personal individuality, there would be no human beings save myself.  Therefore, we humans are, essentially, all the same.  It is nothing short of a foolish delusion to feign that the harm done to human beings, no matter how far removed from us they might be, does not affect us.  Of course, it does not affect us in the same way it affects those directly victims and perpetrators of the injustice.  It affects us as members of one single community of nature.  If a rational and dispassionate analysis shows us that the indiscriminate felling of trees in the tropical forests affects us, how would it be possible that the deaths from starvation of so many people in the world will leave us unscathed?   With the trees in Brazil we share being, we share living, we share planet.  But with victims of hunger, oppresion and violence we share all that, and much more: we share humanity, we share essence.

If I were to explain the relationship between peace and justice with a musical metaphor, I would say that the essence of being human consists in the belonging to a performing choir.  It is a peculiar choir that finds in itself, in its own nature, its musical score which is always the same.  And that score is written by the dictates of justice inside the nature of each of the 'singers': in this sense justice is personal, since we find those dictates (the notes that are to be emitted so the choir will sound harmonious) inside our personal nature, which is sociable too.  The score is personal (whence it makes so much sense that justice be defined as a virtue), but the purpose for the utterance of each note is to find the harmony that will make the choir resonate as one.⁽³⁵⁾.  That is, justice somehow consists of this harmonious giving and respecting others and what belongs to them.  In a sense, the very purpose of justice is this harmonius living in society of all the subjects that the human family (nature, race) encompasses.  The purpose of justice is peace.

The respect for the norms of justice is the way to live in peace.  The basis for a real peace is an effective justice.  Yet, at the same time, the sense of justice is somehow a peaceful life.  Peace is implicated in the notion of justice, since it truly is one of those credits owed to the human person.  Thus, it is perfectly understandable that these two concepts appear so intertwined.  There cannot be real peace without justice; but neither can there be real justice without peace.⁽³⁶⁾

As I said, we grew too used to hear this two concepts together, to the point that they seem to stand on the same level as moral imperatives that have to be sought and given to people.  Give people peace, and give people justice: both are needed, on the same level.  But, according to this analysis, they cannot possibly be treated as separate concerns that stand on the same level.  Justice is a distributive notion: you cannot give justice, but you give according to justice.  As a function of justice other goods are distributed and given; not justice.  It is undeniable that peace is one of those fundamental goods that belong to people just for the sake of their nature.

To the individual dimension of the human being is firstly due the good of freedom (or, more accurately: the respect for the personal liberty), as a matter of elemental justice.  To the social dimension is due the good of peace, as a matter of elemental justice.  Of course, this is figurative speaking, since the bi-dimensional person is a unity, and peace and freedom are due to the individual person.

Peace is a good or, more accurately, a condition for the achievements of all goods that are due according to justice.  In a sense, peace is the fundamental good that justice delivers at the societal level; freedom, the fundamental good that justice delivers at the individual level.  Justice is the virtue according to which all goods are distributed, presupposing that peace and freedom are firstly provided for.  

Legitimally, though, it has become common to use the word justice to express the end result of the virtuous distribution as a status in which people deserve to live.  In that sense, together with freedom, peace would be not only on the same level with justice: it would be the same thing, since the natural result of justice is peace.

Some attempts at defining peace have often fallen in minimalist approaches or, as Galtung calls it, a definition of 'negative peace', as synonym of absence of organised violent conflict (Galtung, 1985).  Of course, this is not the kind of peace that I am referring to.  The purpose of justice, to be sure, is far from being a minimalist peace.  The mere absence of overt violence does not necessarily implies the presence of peace—an oppressive peace is a sham.  Because violence can also be structural (Opotow, S. 1999; Wilmer, F. 1998).  Therefore, when in pursuit of conflict resolution the imperatives of justice are set aside, it is not a real peace what is being sought, but just a sham, a hollow peace.

As I write these lines, a historical opportunity is knocking at the door of the conflict that has afflicted Mexican society for the last few decades, eventhough its roots reach far beyond that period of time.  The leaders and many members of the Zapatist guerrilla movement have moved from their southern state of Chiapas to the Mexican Capital to negotiate an agreement that involves the sanctioning of a series of laws needed to remedy the situation of injustice of many American Indians in that country.  In this circumstance the Catholic Cardinal emitted an official where he expresses that "it would be really poor and sad to further a peace that is nothing but absence of war, since we are not in war or, at the most, we are only in a virtual war.  It is indispensable that we further a peace based on justice, on development and progress" (Zenit, 03/14/01)⁽³⁷⁾.

If we consider an original notion of conflict, which I will stress later on (particularly the notions of latent and apparent conflict), it becomes more clear the assertion that, at least some form of injustice constitutes the basis for every conflict or, to put it in a milder way, in some way the issue of justice is present in every conflict.

However, whereas the explanation of how every conflict is originated by an injustice appears as an Herculean task, to show how every injustice causes a conflict might as well, at least by contrast, seem a much feasible endeavor.

If we use again the musical metaphor we can see how the act of injustice, is per se able to provoke conflict, in the sense that it is in contradiction—in dissonance, in discord—with the note of the sociable human nature.  It means to introduce the very notion of peace (harmonious living) in the definition of justice, since we view its contrary—injustice—as the disruption of that harmony, of that peaceful living.  In the full sense of the word 'peace', indeed.

As many authors recognize, a conflict can be latent.  If you buy a watch with money that you honestly earned, then you have a right to that watch.  The act of stealing your watch is an act easily recognizable as unjust.  The implicit respect to your property right over the watch, which everybody tributed until the watch was stolen, was in keeping with the natural harmony of social life.  But the theft disrupted the harmony, uttered a note in conflict with the harmony of social order: it caused a conflict.  You might not have realized it yet, you may not have noticed yet that your watch was stolen, but there is a conflict: a latent conflict.  Your realization of the injustice does not cause the conflict—the conflict was already caused by the injustice—but it will very likely bring it to the open.

I will call this act of theft the originating injustice, not only because I consider it the origin of the conflict, but also because many other particular injustices are likely to arise from the conflictful situation.  An act of injustice gives rise to conflict, and conflict is fertile ground for new injustices.  "When conflicts turn violent, grievances come to include not only the strategic issues articulated before the onset of violence, but also grievances arising from the physical, emotional, and psychological experience of violence itself" (Wilmer, F. 1998, p. 11).  And it is important to distinguish the injustice that originates the conflict from the injustices that are born from the conflict, since they will have a differential weight at the time of conflict resolution and at the time of reconciliation.

The particular unjust action of theft is intentionally chosen.  All acts of injustice implicate a 'theft', taking the word very generically.  As justice can be defined as giving each one what belongs to each one, injustice would be to deprive somebody from what belongs to him or her.  There is always some kind of deprivation, of dispossession, caused by the unjust act whether it is from a material, quantifiable good, or a non-material, non-quantifiable good.

The act of theft is just one injustice among the many other unjust consequences that the unjust act causes and promotes.  Every time you want to check the time, it is unjust that you are not able to do it in your own watch, and each one of those unjust situations is what I call consequent injustice.  The sanction of a particular unjust law, such as a discriminatory law under the Apartheid regime in South Africa, is, without a single doubt, an act of injustice.  It is a robbery that deprives people of something that belongs to them in a very intrinsic way: their dignity.

The act or behavior in violation of the written law is presumed as unfair, unjust, because it deprives subjects, wether considered as individuals or as members of a group, from something that is due to them according to law, allegedgly according to justice.  But the law written⁽³⁸⁾ in violation of what is just is doubly unjust because, on a certain level, it actually desposseses the individual not only from what belongs to him according to unwritten justice, but also to the right to it.

On a formally legal level, during the Apartheid regime, the black individual's dignity was stolen, not just by the discriminatory treatment alone (which would be the consequent injustice), but also by the law prescribing such treatment (the originating injustice that gives rise to the consequent injustices).  

In the example that we are considering, the victims of apartheid were dislodged not only from the object of their right, but also from the right itself.  Of course, the right—the human, the natural right—to be treated with the respect due to the innate dignity of any human being cannot be rightfully banished by any human law, for its validity derives from a source that is superior to them.  Therefore, when it is not protected by the written law and cannot be claimed in a legally established court of spurious justice, this right—together with all the rights that recognize such an illustrious foundation—can be sought through other means, including violence, including revolution.

Going back to your watch, we can safely assume that you are entitled to the exercise of 'some degree' of violence.  Of course, violence per se is neither socially nor morally acceptable.  If, for no reason whatsoever, you run menacingly after an innocent old lady, tackle her causing her to tumble on the street and break her nose, well... shame on you! You will justifiably be subject to the public shame and to the rigor of the law.

But no shame and no rigor will befall on you if you run and tackle the swindler that has just snatched your precious watch: you are somehow 'entitled' to that degree of violence.  There is even some sort of social honorability in exerting it, specially if you catch the tramp and hand him over to the police.  

Now, let us suppose that the thief runs faster than you and you can only manage to catch up with his younger companion.  You may decide to use extortion and threaten to slash the throat of your occasional captive—you just happened to have a Swiss-army knife in your pocket—if the robber does not stop and return your watch.  Let us suppose that your threat does not yield the sought result, and you actually slit open the throat of your prisoner—who happened to be the burglar's son.  There is little doubt that such an action is morally condemnable, and no doubt at all that you will end up facing a court of law—or, at least, you should.

Some degree of violence is justified as a response to injustice, but not any kind or any degree of violence.

In his book about the process of reconciliation in South Africa, Desmond Tutu does an account of the aberrations perpetrated by Mrs. Mandela and her gangs in their fight in reaction to the oppression of the apartheid.  One of such aberrations was the common and inhuman practice dubbed the 'necklace', consisting in putting a tire around somebody's neck and setting it on fire until death.  This practice was very extended in the South Africa of the apartheid and was mainly used against those suspected of being in any way traitors to the anti-apartheid cause or collaborators with the government.

"Bishop Storey summed up: 'The primary cancer may be, and was, and will always be, the apartheid oppression, but secondary infections have touched many of apartheid's opponents and eroded their knowledge of good and evil.  One of the tragedies of life, sir, is it is possible to become like that which we hate most, and I have a feeling that this drama is an example of that" (page 137).  This is a good metaphor to explain this differentiation between originating injustice and reactive injustice.

A victim of injustice might react with violence.  However, we need to differentiate between an acceptable, and even praiseworthy, level and kind of violence and a violence that makes the victim become "that which we hate most", that makes the victim become a perpetrator of another injustice, the one which I called reactive injustice.

Yet, since I am writing from the perspective of conflict resolution, a field whose principles would seem to command that no violence whatsoever is justifiable, I feel that I should insist on this point.  Mind that I am speaking from a theoretical perspective.  In theory, leaving aside all other considerations, violence can be justified under certain conditions.  Of course, it should always remain a last resource and be accompanied by many conditions.  

The non-violence movements against oppression, of which the Mahatma Ghandi's campaign in India against the British rule has become a paradigm, have introduced maybe an extra factor for consideration.  But not all situations are similar, and we should refrain from assuming that because it seemingly worked well in a particular situation, it will necessarily work well in any situation of oppression.  In the end, we still consider just the struggle and, in general, the methodologies of the French Resistance against the Nazi occupiers, just to name an example.

The evaluation of all these conditions is, of course, up to the leadership among the victims of an oppressive dictator, regime, or system.  But, what is the relevance of considering them for conflict resolution?

If we agree that the injustice originating the conflict is the oppression exerted by a certain tyrant, regime or system (I strongly reject the idea that it is the reaction against injustice what provokes the conflict, as I will explain in further detail), then we will have to agree too that there is some coincidence of objective between the revolutionary elements and the conflict resolver: they both seek the end of the conflict.  And, if we also concur with the statement that compares the conflict resolver with the responsible physician who does not find rest until the truest cause of the illness is removed, we should, therefore, conclude that the responsible conflict resolver should likewise not rest until the originating injustice is removed.

To be sure, I am utilizing a concept of conflict somewhat (or pretty much) different from the most widespread notion.  It seems that conflict is taken as a neutral reality.  Again, viewed and analyzed from the perspective and the methodologies of experimental sciences, no reality can be attached a moral value, whether negative or positive.  Hence, it is understandable that, from a socio-psychological standpoint conflict is a neutral reality that can be positive or negative—constructive or destructive—(Deutsch, 1973), but not just downright negative.

Conflict is usually defined, in very mild terms, as "perceived divergence of interest" (Rubin, Pruitt & Kim).  In this way, conflict is put on the level of perceptions.  It matters little—or nothing—whether the perceptions are accurate or not (again, that is not something that can be found through socio-psychological experimentation).  

Therefore, on one hand, conflict is somehow trivialized; and by necessity it has to be so, as long as we intend to leave open the possibility for it to be either negative or positive.  A simple misunderstanding can well be characterized as a conflict, whereas I would rather characterize it, at the most, as an apparent conflict: something that looks like a conflict on the surface, only beneath the surface is nothing but a problem of communication (or some other sort of problem).  Surely, a misunderstanding might well lead to the commission of an injustice, whence the apparent conflict becomes real conflict.

On the other hand, conflict is made dependent upon reciprocity.  For there to be divergence, duality is needed (you cannot possibly disagree with yourself).  A unilateral act of injustice—from this perspective—cannot generate conflict on its own.  A response is needed.  If I do not react against the aggressor that steals my watch, there is no possible conflict.  If nobody react against the oppression of a tyrant, there is no possible conflict.  Conflict is made possible by reaction—it is generated by reaction.  Thus, it is understandable that conflict be regarded as the "seedbed that nourishes social change" (Rubin, Pruitt & Kim, page 7).  And these same authors conclude saying "where would we be if, in the interest of avoiding conflict, we routinely stifled reformers or they stifled themselves?" (page 8).  And "some degree of conflict is an inevitable and often desirable process in any social system.  Conflict may be a vehicle for enhancing social justice and initiating social change." (Kelman 1991, p. 256).  Whence it evidently follows that conflict is caused by the "reformers" and not by the authors of the situation that needs reform.  Under this light, it appears fully understandable that if, for instance, the conflict is caused by the detractors of Apartheid and not by its masterminds, it cannot be—it should not be—entirely bad; it must have a positive, a constructive side.

Hegel proposed an explanation of historical reality based on conflict: the dialectic.  This dialectic understands processes as "fight of contraries".  A thesis would be the status-quo permanently challenged by an anti-thesis in a conflictive and destructive collision from which a synthesis would be born, becoming the new thesis, to be equally challenged by a new anti-thesis, and so on.  This is necessarily a 'destructive' process because the new synthesis always implies the annihilation of both thesis and anti-thesis.

This theory, so simplistically summarized, has had a remarkable influence in most modern philosophers.  Thanks to Hegel, conflict is no longer seen as something merely destructive that has to be avoided, but just a natural process of history that might evolve in either constructive or destructive ways.  Notwithstanding the phenomenal success that Hegelian idealism has enjoyed and still enjoys, I think that this optimism regarding conflict has never been fully received in the common language.  It seems to me that common people are still regarding conflict as something that is better to keep away from their lives.  The 'constructive' side of conflict is a concept that has not developed beyond intellectual circles; moreover, not beyond the western intellectual world.⁽³⁹⁾

An immediate consequence of this outlook on conflict is that scholars and practitioners in the field of conflict resolution do not usually think of the conflict as the problem; the problem is violent conflict (Mitchel, C. & Banks, M. 1996).  One way in which this viewpoint is often justified is the consideration of the inevitability of conflict.  Since conflict is inevitable—an unavoidable reality of human interaction—it follows that it might not be really undesirable.  This is a typical assertion for those who view social reality as a legitimate source of moral and—eventually—legal norms.  The deficiency of this line of argumentation can be hinted by way of a medical comparison: should the inevitability of disease lead us to assert that the problem is not disease, but just incurable disease?

The view of violence as a problem (opposed to the view of conflict as a problem) might well have an immediate effect on the perception of any conflict: it starts up by placing the blame for the origination of conflict on one of the sides.  Unless violence is carefully defined, its quick condemnation might inadvertently, but surely, bias the perception of the conflict against those parties that initiate the more manifest violence.  The parties that initiate the more manifest violence are, typically, those that react against injustice.  

Unless, as I said, violence is carefully defined, so carefully that it includes all injustices as violence, in which case, and according to my theory, all conflicts are violent per se, since they originate in an act of injustice, and injustice is likewise defined as violence per se.

It is needless to point out that I am oversimplifying for the sake of analysis.  In real life conflict situations, particularly in protracted, deep-rooted, inter-group conflicts (such as in the South African case), we would be extremely lucky if things were so simple.

In the first place, at least in theory, it is possible that the unjust deed regarded as the originating injustice is nonexistent, or the act that the reactive element reputes as such is not really unjust.  Usually, people feel pretty confident about the justice of their claims, but they can be mistaken about the act itself, about its justice, or about its author, and all these possibilities might very likely compound the origin of what I dubbed apparent conflict.

Let us suppose that somebody runs into you while walking in the streets.  After the apologies of the case, the individual hurriedly disappears in the crowd just when you notice that your watch is missing.  You prance on your feet and chase after him.  We already know the scene: you tackle him and hold him down, while vigorously commanding the devolution of your watch.  The poor fellow, still in shock, can only point to something at your back.  As soon as you turn around you suddenly feel a wave of crimson heat flooding your face and burning the edges of your ears: somebody is handing your watch over to you while saying: "you just dropped it back there".

In this case, you mistakenly assumed that your watch had been stolen and behaved consequently, in pursuit of its restitution.  Your wrongly founded claim constitutes in this case the injustice originating the conflict, despite your conviction about the act of theft being the cause of the conflict.  The injustice of your claim lies in the fact that it is depriving somebody else of something that legitimately belongs to them: their peace of mind and the cleanliness of their reputation (and of their clothes, too!).  Paradoxically, you have now become the perpetrator of an act of theft.

Likewise, you can unwittingly become the thief when you have a wrong idea about your rights.  You may mistakenly believe that the watch belongs to you, but your right might be ill founded as, for instance, in the case that you inadvertently bought a stolen watch.  Then, again, your unjust claim would be the originating injustice for that particular conflict (of course, there is another conflict with who sold you the stolen watch).

Finally, your claim might be directed to the wrong person.  In this case, there is a duplication of conflicts: you have a conflict with the actual thief, conflict that is correctly founded on the act of theft, and you have another with the wrong person, which is ill founded on your erring allegation.

In all these examples we considered bona fide claims that, nevertheless, contained an injustice that produced the conflict (which relates to the fact that there are both an objective and a subjective side to justice, over which I will touch later).  But we should never loose sight of the sad possibility that there might be no good will whatsoever in the claim.  It was recently reported in the news the case of a lady that played a lottery ticket over the phone, in some state of New England.  Apparently, the number she picked hit the jackpot, but the agent, who kept the receipt, claimed the prize as his.  In this case, it is patent the injustice of the claim, eventhough, if there is no good will, the claim closely resembles an attempt at burglary.

Among the likely multitude of injustices that a conflict is prone to give rise to, it is not easy to make out which the originating one might be.  It can happen that the parties to a conflict misplace it, assigning the character of original to what is but a derived, or consequent, or a reactive injustice.  

Furthermore, it would be really strange—if not impossible—to come across a conflict in which the parties agree on which the originating injustice is.  It is downright impossible—or belonging to the realm of lunacy—for the parties to agree on the injustice and misplace the victim.  Since the unjust action engenders a deprivation of what is claimed as due, it is unconceivable to have two parties holding identical claims of deprivation effected by one identical act of injustice.  In fact, if the act is the same, the source is the same and, therefore, the culprit is the same.  If this absurdness were ever to happen it would mean that the parties are blaming themselves for the same act!

Most typically, one party claims as originating injustice a deed of which it holds accountable the other party, whereas the other party asserts the claim itself as constituting the originating injustice.  Beyond this seemingly unsurpassable wall nobody—as far as I know—has dared to go in the practice of conflict resolution (and I entertain my reservations about whether it is really possible to do it).

Logically, more often than not, the more powerful party is the one alleging that the claim is unjust.  And I say 'logically' since I understand that people will rarely relinquish the utilization of their power—particularly in absence or failure of any other more 'politically-correct' means—to procure what they deem as due to them for reason of justice.  Therefore, the formulation of a claim for somebody with enough power to realize it on its own and, in absence of a moral or legal obligation to do it, is usually regarded as unnecessary.

Indeed, the conflict dynamics themselves determine which party is the more powerful: that who ends up with what the other wants.  "From a social exchange perspective, one person becomes powerful when he or she posseses resources that another person wants" (Brehm, S. 1985, p. 142).  Therefore, if the more powerful party is not in possession of what it reckons as being entitled to, sooner or later it will take it by force, assuming that non-violent ways have failed.

Let us see it with the example of the watch.  If you are faster and stronger—more powerful—, and so you catch the thief, knock him down and get back your watch, what would be the point for you to formally raise a claim to it?

In sum, the weaker party is that who does not have what it wants and is unable to acquire it without the other party's consent; whereas the powerful party is that who has what the other wants and is able to keep it against the other party's will.

As I said before, in theory, a claim can be groundless, hence, unjust.  In a situation of roughly equal resources the moral qualification of the claim will have little influence in the continuation of the conflict; although there are slightly more chances that it will end sooner if the claim is unjustified.

When there is a power imbalance it is highly unlikely that the conflict persists if the imbalance favors the claimant.  If my two-year-old son has taken hold of my only pair of shoes, refusing to release them in the moment that I have to leave for work… well, we have a conflict there.  What is the likelihood for this conflict to persist?   I might be willing to use all my persuasive capabilities… to a certain point.  And then I will use 'violence', hopefully, just enough violence to tear away my shoes from his grasp and get to work in a reasonable time.  The conflict is over, since the 'injustice' that prevented the realization of my supposed right to wear my shoes to work has been removed.

Therefore, the claimant is typically either weaker than the other party or their resources are similar.  Otherwise, both parties are members of a legally organized community furnished with norms that monopolize in one authority the resource to certain violence as a means of pursuing justified ends, and that is the only reason for the conflict to endure beyond what it would without such a constraint.

In sum, the claimants are usually weaker than the party towards which the claim is directed, which holds particularly true in situations characterized by an absence of a superior authority that binds both parties together with similar force.

A peculiar case of misplacement takes place in several conflicts among those that are known as ethno-national conflicts.  It could happen that the originating injustice somehow creates a somewhat 'artificial' need or right, which is, in stricto sensu, a tributary need whose satisfaction is pursued as a means to achieve the satisfaction of a different need (or the realization of a different right).  

It seems to me that, the longer the conflict, the more probable is that the weaker claimant will be driven away from a clear perception of the original injustice, which is slowly replaced by the strong presence of the goal sought as a means to resolve the injustice.  The initial failure of the powerful party to address a claim against a particular action or behavior will help create a perception that the problem is the party itself and not its unjust action or behavior.

Possibly, the failure to address a claim against an injustice will contribute to the creation of the right sought as a goal, albeit only as a means to satisfy the need created by the unjust situation.  This idea might be calling for a clarifying example... In dealing with this level of issues it is not easy to give real life examples without making a moral judgement about the chosen conflict, in which case a deep understanding of its history and development should be required.  So it might be easier to chose either past conflicts, or still current conflicts and focusing on stages already overcome or goals already forsaken.  An easy way out is always the resort to the South African case, as there is a seemingly universal acceptance of the evil of the Apartheid regime.  

It occurs to me that the South African case appears as so 'simple' in a way because the situation of injustice was forced over a majority of a population and maintained for the advantage of a minority.  But—and I do not think I can insist enough on this point—the numeric relationship does not add nor take anything from the injustice of an action or situation.  An injustice is an injustice even if it is imposed on just one person with the unanimous consensus of the rest of the population.

Anyway, the point here was to use the South African case to exemplify how the weaker party can misplace the originating injustice.  The injustice of the Apartheid was the discrimination against a group of people, no matter how big or how small its number is.  

For the achievement of a durable peace the primary goal should be the removal of that injustice.  But there are many means that have the same ability of providing for that end.  The one finally chosen was not the only one.  One option could have been the riddance (deportation, mass killings, etc.) of all the whites and the re-creation of a race-based new South African state⁽⁴⁰⁾.  In cases like this, the obvious refusal to such a solution from the powerful party and the militancy of the weaker party itself protracted along time drives the latter to misperceive the injustice of the original behavior, translating it to the very existence of the other party.  Thus, the hardening of the powerful party's position leads to an excessive demand, which in turn hardens the other party's position further.  The hardening of the powerful party's position in turn reassures the weaker party in the reasonableness of their demand, and it is not difficult to imagine that from this escalating spiral ensues a misperception of the original injustice.

More typically, this misperception translates into new nationalist movements longing for an independent state, to the point that the very existence of the new state becomes a matter of justice.  It follows that the refusal from the powerful party to give up territory and grant recognition to secessionist movements ends up taking the place of the originating injustice in the perception of the weaker party.  It is understandable then that the independence becomes thus a major goal that cannot be waived.  In a certain way, the original injustice, usually a discrimination based on some trait of a minority group, hardened by conflict might solidify to a point where it might certainly give life to the right of secession for that minority.⁽⁴¹⁾

A very common objection to the treatment of the issue of justice in conflict resolution is the subjectivism attached to the concept.  Practitioners often allege that each party will very likely have a different view on the historical circumstances that provide the ground for the entitlements in dispute.  Yet, this does not mean that the notion of justice itself is subjective and that the final justice of a given case resides on a subjective notion, whether it comes from only one of the parties or from both parties in a sort of consensual formula that it might be, in the end, nothing but a middle point between the parties' subjectivities—a compromise.

Usually, people's conceptions are pretty much the same.  It is not far fetched to assume that Ulpiano's definition can safely resist the proof of time and cross-cultural application.  It is not the basic notion of justice what people usually contest.  In abstract, it is likely that everybody would agree in that justice is 'to give everyone his own right.' The disagreement, instead, is very likely to arise at the time of determining what right belongs to whom.

But before arriving to the point where a decision needs to be made about entitlements, a conflictful situation needs to be already in place.  While there is no conflict, there is no need to establish entitlements.  Or, to say it from a different perspective, as long as I am not involved as a debtor of a credit I am much more likely to agree on the validity of any given entitlement.

During a session of a Problem-Solving Workshop⁽⁴²⁾ between Israelis and Palestinians, one of the Israeli participants kept on insisting that she did not need 1948 to recognize rights to the Palestinian People; for her, 1999 was enough (the year of the workshop).  She was referring to the discussion around what many consider the beginning of the dispute: the war of 1948 and the declaration of the Israeli state.  What she meant to say was that she did not need to engage in the historical discussion about who was the culprit for that war, because the sole contemplation of the state of Palestinians as of today was enough to assign the entitlement.  But the great difference hinges on that leaving 1948 aside, cutting off the present situation from the historical antecedents that created it, means leaving Israel out of the conflict.  In this way, only because of humanitarianism Israel would be obliged to Palestine, in the same way that any other human being might be obliged to another human being in need.  Again, it is easy to acknowledge the debt as long as you are not the debtor.  But it is useless for conflict resolution, since it avoids the very core of the dispute.

It would be like the thief of your watch being very empathetic with you, very humanitarian in his concern while you tell him of all the misfortunes that have befallen you as a consequence of not having your watch, but in no way whatsoever acknowledging that those misfortunes have been caused by his unjust behavior.  In other words, even though empathy is, in general, desirable for conflict resolution, an empathy misdirected to any injustices that leave aside the originating injustice are utterly useless and, even worse, they might end up proving harmful for the resolution of the conflict.

Justice can be both subjective and objective.  The subjective side of justice is given by its very definition as a virtue: "a constant and perpetual willingness to give each one what is due to each one".  In this subjective sense, it defines the person as just or unjust.  But there is an objective side to justice too.  Ulpiano's definition assumes a predetermination of credits: the assumption that there are pre-conscious, pre-humanly assigned credits to whomever is included in the scope of the definition, in the 'scope of justice'.  The end result of an operating force over reality, over that reality of satisfaction of credits is what constitutes the objective justice.

I shall explain this with an example.  Let's suppose that a professor rejects a paper because he or she does not like the subject, even though it complies with the requirements given by the syllabus.  The student, after some mulling over the possibility of changing the subject, decides to consult with the dean.  The dean tells the student to keep the subject and orders the professor to give a grade to the paper.  Of course, the grade was the lowest, but the student passed the course.  In this case, some degree of justice was accomplished: the student wrote about the subject he or she wanted to, and approved the course.  This is the objective side: the end result of the process of distribution.  Not the contextual conception of justice from the professor, nor the one from the dean, nor even the process by which the somehow just result was reached (nor even the one from the student, for that matter); just the end result.  In the subjective sense, this accomplishment of an objective sense of justice did not make the professor any more just.  His (or her) act made justice, but did not make him (her) just.  His (or her) act was just, objectively speaking; it can still be considered unjust, subjectively speaking.

And the subjective side of justice is also given by the concrete application that the subject makes of objective standards of justice.  But, that the application of a standard is subjective (by necessity, since it is done by a subject) does not mean that the standard itself is subjective.  

Down similar lines runs the argument in favor and against deeming justice as 'context dependent'.  If what the argument in favor is saying is that people always, or most of the times, or often, judge the justice of an action or situation by standards that change with context, that is one thing.  But to say that justice itself is dependent upon context is quite a different issue.  As with the example of the unjust professor, the objective justice did not depend on the context within which the professor's standards were to be applied.  There was already a criterion that made the objective end result of the subjective application of a standard just or unjust; a criterion pre-existent to both the context situation and the subject applying the contextual standard.

Another example might clarify this distinction between subjective and objective justice.

Let us suppose that I was born some 250 years ago, to a well-off family in Virginia, where my father owned a cotton plantation and a crew of 80 slaves.  My father died when I was only 20 years old, and I took charge of the farm.  I might have been an honest and fair man that treated everybody with justice and respect, including my 80 slaves.  Still, they were slaves: I maintained a situation that deprived them from one of the most cherished of credits and I was benefiting from their hard work without compensating them what is just.  But I had hardly a way to realize that, since my cultural context did not give me any clue as to the injustice of this situation.  Subjectively, I might still be just.  But that I am subjectively just does not mean that the fact that I own slaves and that me and my family and posterity are benefiting from free labor is not objectively unjust.  Little matters that the cultural context does not provide for any standard that leads me to realize of that injustice.  When the context leads to the acceptance of what is unjust as just, then the context itself is unjust.  The fact that I might be considered as just does not mean that I am free from committing any unjust behavior, whether willingly or not.

I pointed out earlier how most of the social and psychological research on justice has been done assuming what Susan Opotow calls 'moral inclusion', this is, "relationships in which the parties are approximately equal, the potential for reciprocity exists, and both parties are entitled to fair processes and some share of community resources" (Opotow 1990, p. 2).

This phenomenon is, I believe, perfectly explainable by what I characterized as the isolation of behavioral sciences.  Without any guidance for research, there is no reason to even consider the possibility of studying the issue of justice beyond the boundaries of moral inclusion, beyond the scope of justice.

When Opotow says that "standards for fairness change with context" (1997, p. 232), she is describing a reality: different people have different standards; and they do change with context.  The question here would be whether a merely descriptive approach to the issue of justice would suffice to understand not only the breadth of the concept, but also its relationship to conflict and conflict resolution.

This is what I alluded to when I earlier mentioned the limitations of social sciences: they are, by reason of their very methodology, merely descriptive.  In stricto sensu we cannot extract ethical conclusions from socio-psychological research.

Philosophy, and ethics in particular, needs to be made part of the equation.  Injustice and conflict are moral realities, since they involve human behavior that is free.  Because it is free it needs guidance.  If it were not free, guidance would be pointless.  That is why we only predicate morality on human affairs: only free beings can be offered guidance (like the guidance of the law) and be held accountable for their actions.  

I offer the answer of natural justice, grounded on a realist philosophy.  I cannot see possible guidance from a different perspective.  Certainly, I cannot see a possibility for ethical guidance stemming from a conception of human beings that denies its free nature, for the reason avowed.  I cannot either see it coming from social-psychology because, even if it does not directly denies this condition, it uses methodologies that leave aside the reality of the free condition of human behavior.

From the perspective of natural justice, the criteria for justice exists outside the mind and is independent from and not affected by the consensus of the majority, or even an unanimous consensus, because it is based on truth.  It does need to be discovered, though, as truth does, since nobody can claim its absolute possession.  And the process of discovery will certainly be helped by a common, open-minded process of cooperation.  From the perspective of natural justice, the criterion for justice is found in nature.  

If justice is found in nature, then the scope of that justice should also be found in nature.  It is nature what dictates what is due to each.  Therefore, whatever is due to an individual as a function of his human nature, is also due to all the individuals that share that same nature.  If my rights are founded in nature, then I cannot deny the same rights to any other being that shares the same nature.

All other attempts at founding moral inclusion for all human beings or, to put it in ethical terms, all other attempts at founding a moral obligation to include all the beings that share a common humanity within the boundaries of one's scope of justice, seem to be mere categorical imperatives, in the Kantian way, that have to be accepted just because.  Or, perhaps worse, if the Rawlsonian outlook is taken, the respect for the dignity and rights of every people (which is what the moral obligation of universal inclusion imposes) would be made dependent upon certain procedures on which a certain hypothetical consent can eventually be constructed.

The notion of justice, from a contractualist (ius-positivist) conception, ends up being necessarily a notion limited to one's scope of justice.  There is no possible foundation for moral inclusion of all human beings within the scope of justice if the grounds for social inclusion are given by anything (a contract, a consensus) different than the reality of human beings themselves.  In the best case, they can only provide a moral justification for inclusion of all those that are a part in that contract, in that consensus. There is no possible justice, there are no rights beyond the limits of the pact.  As Walter Farrell says:

Within one's scope of moral inclusion from a positivist perspective the sole possible ground for justice and right is the law, that is the result of a contract or of some hypothetical consensus.  Beyond this scope everything is open to discussion, to agreement, to construction, because nothing is pre-defined.

Hobbes is very clear in pointing that justice is an intra-state concept; in other words, the scope of justice is determined by the law of the state, because out of the agreement to come into a politically organized society there is no law, there is no justice.  Beyond the realm of positive law there is but a natural state of war of all against all.  

Stepping into more specific grounds of conflict and conflict resolution, the implications of this view become very neat when we consider whether the parties involved in a given conflict are included in the same scope, or are not included in the same scope (or in any constructed scope).  Most typically, when parties are not under the same scope, it is very likely that the third party is under still a different one.

The scope of the third party will be ultimately defined by his or her position in relation with these different philosophies.

From a purely positivist-contractualist point of view, there is no possible ethical dilemma whatsoever.  The scope of the third party is already defined by the positive laws of his or her country, and they are not deemed applicable to any situation or people outside this scope.  Since there are no predetermined rights or notions of justice, there is no point in troubling one's conscience: the justice will arise from the agreement, whichever its form and content may be, that is agreed upon by the parties.  More specifically, from a Rawlsonian point of view, justice will be guaranteed as long as a consensual fair process is guaranteed.

Much has been written about justice and reconciliation starting from the process of reconciliation in South Africa and the numerous more or less similar processes that followed in other places.  These processes have somehow become under the focus of interest of some researchers and practitioners in the field of conflict resolution, and it does not seem very difficult to see the reasons for this.  

Reasons that I do find more difficult to see are those that should explain why, whereas in the field of conflict resolution the issue of justice has been neglected for so long, the study of these processes of reconciliation have raised so many voices—even indignant voices in some cases—questioning them for their apparent lack of concern with justice.

I certainly see the relationship between reconciliation and conflict resolution, although I believe that reconciliation is more of a post-conflict-resolution task.  I perceive reconciliation as the process of rehabilitation of the parties and relationships that have been damaged by the conflict.  After an important surgery that has finally removed the 'cancer' (or whatever it was the cause of the illness), a more or less long process of rehabilitation ensues.  

Thus, reconciliation can only take place after the originating injustice has been removed.  It would be a non-sense to send a patient to rehabilitation while the surgery still needs to be done.  It would be really strange if the robber of your watch suddenly turns around and falls on his knees asking for forgiveness.  But it would be even stranger if, after the act of reconciliation—supposing that you acceded, and forgave him—sealed with a fraternal embrace, the man walks away with the watch around his wrist! Of course, I am not suggesting that you decided to donate the watch to the repented thief: that act of generosity has in itself the virtue to remove the originating injustice.  No, what I am referring to is an act of incredible impudence on the part of the allegedly repented thief.  What kind of reconciliation would that be?   As long as the injustice that originated the conflict is not removed and somehow redressed by the perpetrator, there is no possibility for reconciliation.

As I said, conflict resolution must take place before reconciliation.  For conflict resolution to take place it is necessary to remove the 'cancer', the cause that originated the conflict.

Human history offers abundance of examples of former enemies becoming friends again, of victims forgiving their victimizers, "when the dehumanized perpetrator might be helped to recover his lost humanity" (Tutu, 158).  But nothing of this is truly possible as long as the originating injustice is not removed.  As long as what it ultimately causes somebody to throw a bomb—say apartheid—is alive, there is no possible reconciliation.  It is even ridiculous to imagine that the South African process of reconciliation could have occurred, with the masterminds and promoters of the apartheid regime asking for forgiveness in front of the Truth and Reconciliation Commission while keeping the apartheid alive.⁽⁴⁴⁾

Reparable and irreparable injustice

In a certain sense, all injustice is irreparable.  In the strictest sense, a perfect reparation for the commission of an unjust action would only be achievable if it were possible for human beings to reverse the inexorable steps of time, go back to the past and live again the circumstances that surrounded the injustice but without committing the injustice this time.  From this perspective an idealistically perfect justice is an impossible dream.

But in a broader meaning we can consider an injustice as reparable when the good which deprivation was its immediate consequence can be restituted to his owner in a fairly good shape or replaced by a good acceptably similar to the stolen one.  The theft of the watch would be a typical case of reparable injustice in this sense.  We can also consider it reparable taking into account that unjust deeds create a situation of injustice.  In this sense, even if many of the consequent injustices are not reparable, the originating injustice can always be considered as reparable in its consequences—at least in theory—and it would imply the cessation of all the actions or inactions that contribute to maintain the situation of injustice.  In these cases, reconciliation remains impossible unless the offender undoes the unjust deed, reverting the situation to its original justice, for there is nothing that prevents him from doing so, since the injustice is somewhat reparable.

However, from this perspective, the achievement of a realistically perfect justice becomes possible, which would be given by the actual restitution of the deprived good.  A non-perfect justice would be anything between no reparation at all (the most imperfect), and a non-satisfactory restitution.  A non-satisfactory restitution would not be enough to end the conflict, it would rather intensify and perpetuate its consequences.

Why do I say that a non-satisfactory restitution would intensify a conflict and perpetuate its consequences?   Because of the destructive role that violence plays in every conflict, but particularly in inter-group conflicts where the reaction of the conflicting unit is far from being a controllable behavior.  

A non-satisfactory restitution might be, in some way, more harmful than no restitution at all.  Psychologically, as long as there is no restitution whatsoever, there might be hope for a fair restitution.  But when there is some kind of non-satisfactory or partial restitution, with no conspicuous understanding that it is being given as partial, the psychological perception from the part of the recipients (of the restitution) is very likely to be—and with much logic—that it is all that the other party is willing to give, thus shattering their hopes to smithereens.  

Kriesberg even warns us against conciliatory moves considering that sometimes "the constituents of those to whom the accommodative actions were directed raise their expectations about what they should receive in light of those actions" (p. 125).

And, understandably, frustration is very likely to cause aggression (Dollard, Doob, Miller, Mowrer & Sears, 1939).  I believe that frustration played an important role—not to say a decisive role—in the violence unleashed after the failed negotiations in Camp David between Ehud Barak and Yasser Arafat, sponsored by US President Clinton in year 2000.  

It is very important to keep in sight the foreseeable consequences of raising expectations in conflicts of such a nature.  There is certainly a perverse dynamic in conflicts that builds upon pessimistic perceptions of the other side, fed once and again by self-fulfilling prophecies of escalation, and all theoretical and practical efforts to balance such a negative influence, like Kelman's "strategic optimism" (1996), should be welcome.  But it would be irresponsible to neglect the indispensable safeguards to avoid raising false expectations that might backfire in the form of frustrated hopes and consequent violence with all its pernicious effects to the conflict.

A quite different scenario is the case of irreparable injustice.  In this case, the restitution of the good becomes impossible due to the nature of the good itself as, for example, when the immediate consequence or the very substance of the unjust deed is the deprivation of someone's life.  Paradoxically, in such cases, reconciliation becomes possible—not probable, though—without much beyond recognition and apology.  Of course, offers from the offender to do whatever within her reach, to at least attempt to somehow compensate for the injustice created by her deed, will be most helpful towards the achievement of a sincere and durable reconciliation.

From this perspective of the consideration of justice, stands out the conclusion that punishment has really nothing to do with justice.  Particularly from the criticism of the processes of reconciliation has come powerful the idea that they compromise justice, that is a moral "second best" to perfect justice.  The assumption is that punishment of perpetrators would be that "perfect justice".  

Tutu relates the case of a necklace victim, Maki, which was brought up by Joe Mamasela's application for amnesty.  Maki had been killed for introducing Joe Mamasela to 8 young anti apartheid activists.  With the promise of getting training in the use of hand grenades these eight youngsters were supplied with booby-trapped hand grenades which blew them to smithereens when they pulled the pins.... and all the suspicions naturally fell on Maki, who died the horrible death of 'necklacing' for being an informer for the enemy.

Bringing to trial the people responsible for Maki's savage execution and punishing them with the punishment they deserve would do nothing to re-establish the justice violated with her murder: it would not bring her back to life.  We are too used to identify punishment with justice and so, we usually say "justice has been done" when a criminal is condemned.  However, I believe that there are other reasons for punishment—deterrance, society's self-defense—that only in an indirect way relate to justice, as long as it is deemed as an indispensable means to maintain a peaceful society, which is required by justice.

That is why punishment is not a right of the victim, but a prerogative of the state.  Yet, forgiveness is a prerogative of the victim that cannot be imposed by the state...

"We believe that a major shortcoming of many of the efforts in the field is the failure to link management strategies with an understanding of the origin, escalation and perpetuation of conflict in the context of the modern world.  Once this is understood, appropriate management techniques can be devised and tested." (Azar, p. 27).  Moreover, the understanding of the origin of conflict will permit the decission about the continuation of a certain conflict-resolution intervention.  

The whole approach of the present work is based on the presumption of an intrinsic relationship between conflict and justice.  In fact, as exposed in the third section, injustice is the natural seed for conflict, and it is not really possible to build a theory of conflict leaving aside the discussion about justice.  I presented here and argued in favor of the extreme of possibilities: that every conflict is ultimately rooted in an act or situation of injustice.  

Notwhistanding, there are situations commonly known as conflicts that do not necessarily involve an injustice.  It is, to a certain extent, a matter of terminology.  Still, even if this terminology is not accepted, it is very difficult to refute the existence of conflicts actually rooted in acts or situations of injustice.  Considering the amount of these kinds of conflicts and their gravity, it is surprising the absence of a more profound treatment of the issue of justice within the field of conflict theory.

The explanation for this absence could be found in the fact that the most predominant theories about justice do not permit to substantiate a solid basis for any theory, since it is a concept that has been made dependent upon changing factors.

In the first section I tried to explain two fundamental positions regarding the concept of justice.  One of those fundamental positions understands justice as something objective, depending on nature and, therefore, universal and unchanging.  The other fundamental position decries the posibility of an objective justice and, therefore, its imperatives are subject to the changes of time, context, consensus, or any other such circumstance.  Evidently, the latter is the most widespread notion of justice and has, as if by osmosis, permeated the theory of conflict resolution.  Therefore, the notion of justice has been made so evasive that it became useless for the theory of conflict or, even worse, a hindrance for conflict resolution.

From within the second position various attempts have been made in order to fabricate a more or less universal notion of justice—the contractualist attempts.  Among the latest such attempts I mentioned John Rawls' conspicuos theory of justice.  The fundamental flaw of all these contractualist attempts for the theory of conflict is that any conception of justice hypothetically reached by consensus will leave outside of the scope of justice all those that did not participate in the consensus.  Since conflict, at its core, implies a lack of consensus, this theory, if applicable to the real world at all, could never be applicable to conflict situations.  Therefore, justice is understandably left outside the discussion about conflict and its conceptualization becomes an instrument or a process to maintain an allegedly peaceful status quo.

From the adoption of a deterministic understanding of human freedom and an immanent conception of personal autonomy, it follows a particular scientific approach that attempts to extricate a definition of justice from the self-contained individual that cannot convey but a relative and subjective concept.  In the second section I tried to show why behavioral sciences are limited and, to a certain degree, inappropriate for the study of the issue of justice.  

Strongly influenced by an idealist epistemology and a deterministic morality, both very much on fashion in our contemporaneous intellectual world, the modern sciences of human behavior have become an ideologized and culturally isolated approach to issues that relate to complex human realities, such as justice and conflict.  I suggest that theorists of conflict resolution should be able to step outside their specific scientific fields and question the philosophical pre-concepts that are implied in the election of the autonomous individual as unit of analysis and the experimental methodology as the exclusive tool for research.  The reasons for the treatment (or lack of treatment) of justice in relation to conflict can only be found beyond the walls of behavioral sciences.

An objective consideration of justice from a realist and ius-naturalist point of view allows instead for a full inclusion of the notion of justice in the theory and practice of conflict resolution.  The fourth section of this work hints ways in which the notion of justice can be included within a novel theory of conflict.  Thus, the notions of originating, consequent and reactive injustices are suggested as the fundamental ways in which the issue of justice can be related to conflict.  My hope is that these notions will serve as the building blocks for the development of a new approach to conflict resolution or to shed new light for the improvement of existing approaches.  

In any case, my major goal in this work has been to present arguments in favor to including justice as a necessary notion for the analysis of conflict and its resolution.  Furthermore, I pursued the advancement of an objective notion of justice rooted in the realist philosophy of Iusnaturalism as the only way to understand the dynamics of the interaction between injustice and conflict (or peace and justice) and to ground a consistent ethics for the practice of conflict-resolution.

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References

⁽¹⁾ I suggest that any conflict where violence is exerted against the physical integrity of any human being has reached that extra-ordinary level, indeed. [Back to text]

⁽²⁾ A conflict is 'patent' when has been brought to the level of perception.  The notion of 'latent' conflict is key for the understanding of the proposition I make later: injustice—and not the reaction against it—is the origin of conflict.  There are many injustices in the world, silently suffered by their victims.  In the first place, the fact that they have not reacted against it does not imply its inexistence and, in the second place, it does not make their reaction the origin of a new conflict.  The conflict was already there, in a 'latent' state, and was originated by the injustice. [Back to text]

⁽³⁾ Hemophilia is a disease of the blood that can be transmitted by women but is only suffered by men. [Back to text]

⁽⁴⁾ In many cases, the postponment will not be acceptable, particularly by the lower-power party, which further strengthens the temptation of presenting a parcial solution as the final one. [Back to text]

⁽⁵⁾ "Justice is a constant and perpetual will to give everyone his own right", is the definition found in the first chapter of the first part of the Digesto by Ulpiano, the famed Roman jurisconsult.  This formula has remained as the most known definition of justice throughout many centuries, as I will explain later. [Back to text]

⁽⁶⁾ I designedly emphasize the word perception, since it is far too common to extrapolate from subjective perception to subjective perceived reality, and with no further causal nexus reality is thus made subjective.  And so is, for that matter, anything that can be derived from reality, such as the notion justice. [Back to text]

⁽⁷⁾ See "The Fallacy of Epistemological Idealism" (in The Radical Academy) [Back to text]

⁽⁸⁾ Much the less if we consider that Descartes "does not intend to hold his mind in a state of suspended judgment, or merely to leave his spontaneous convictions aside for the time being, in order to investigate their possible validity, which would be methodic doubt as generally understood; he is convinced that he ought 'to reject them as absolutely false,' (Meditations, I, toward the close) and he actually carries out his plan, so that he really rejects everything down to the one indubitable fact: 'Cogito, ergo sum—I think, therefore I exist.'" (from "What Is Wrong With Descartes' Philosophy?" (in The Radical Academy) [Back to text]

⁽⁹⁾ Unless, of course, we do not consider ourselves as a differentiated species.  But that is a completely different discussion. [Back to text]

⁽¹⁰⁾ According to Darwin's prestigious evolutionary theory, human being descends from apes.  Yet, archeologists that search for ancient traces of human life know very well what they are looking for; by no means would they mistake the footprints of a gorilla from those left by a human person.  And that is simply because they assume a certain differential behavior.  If, for instance, an archeologist finds a stone that has been carved in a certain way, she will immediately know that she is in the presence of a human track.  In few words, human behavior is peculiarly characteristic, and the traces of that behavior are unambiguous in that they reveal an undubitable presence of human beings.  This is a clear clue to the human essence (or nature), because nobody would mistake human traces with traces of other species. [Back to text]

⁽¹¹⁾ It is important to clarify what concept of freedom I will be referring to, since, I believe it is not the most widespread definition nowadays.  The most commonly accepted understanding is the one that defines freedom as a human capacity to act (or not to act) as we choose or prefer, without any external compulsion or restraint.  This definition, as we can appreciate, does not make any reference to the end or purpose of this human capacity and is limited to action.  Instead, I understand freedom (or free will) as the human person's capacity of self-determination towards her own end.  There is no real choice in relation to the ultimate goal, which is the perfection of the nature that is imprinted in the nature itself.  In other words, the ultimate goal can be accepted or rejected, but not modified, since that would mean that the nature can be changed by the individual person, hence there would not be a common nature, there would not be a human nature.  Even though we often use the concept of inhumanity, that is paradoxically done always referring to human behavior.  In other words, we are not free to choose to act in a non-human way, which would be a non-free way.   Freedom in this sense is usually regarded as a presupposition of moral responsibility: the actions for which I may be praised or blamed, rewarded or punished, are just those which I perform freely, and those are the typically human acts. The further question of whether choice—the volition or will to act—is itself free or subject to ordinary causality raises the issue of determinism in human conduct. But most modern philosophers have held that (internal) determination of the will by desire or impulse does not diminish the relevant sense of moral responsibility. (For a very complete discussion on free will see Michael Maher, Free will.  In The Catholic Encyclopedia, Online Edition for New Advent. Copyright 1999 by Kevin Knight.) [Back to text]

⁽¹²⁾ This example is translated and adapted from Velasco-Suárez, Diego: "Ley, Moral y Derecho" (unpublished manuscript, 1994) [Back to text]

⁽¹³⁾ As I will try to display it later on, the "ius-naturalism" of the contractualist theories are the ones that attracted —and deservedly, I should say—this line of criticism.  But, as I warned earlier, not every self-denominated ius-naturalist is really such.  Under the influence of Descartes, Hobbes (and all the contractualist theorists to come after him) parted with the Aristotelian tradition of the realist philosophy.  This detachment from reality and his earnestness to find a unique explanation for the behavior of men in society, led him to a deterministic mechanical materialism, diametrically incompatible with moral liberty. [Back to text]

⁽¹⁴⁾ Surely, this is tantamount to setting up the sole will and fancy of the legislator as the criterion for what is just, judged according to its effectiveness to be imposed, which is ultimately accomplished by coercion and force.  If we peel off all the layers of the theory relentlessly enough until we are left with its bare core, we are bound to conclude that the final criterion, the definitive source of justice is nothing but the victorious one out of an impudent contest of power. [Back to text]

⁽¹⁵⁾ Split that took a very subtle form at the onset, with Descartes' methodical doubt and ensuing slow small steps away by himself and close followers of his philosophy.  The steps grew to become strides with Kant, and a definitive run away with Hegel. [Back to text]

⁽¹⁶⁾ This realist assertion is based in a theory of needs and a theory of faculties, among other considerations.  According to what I said earlier about the epistemology of human nature, that man is sociable by nature would mean that he needs from other men in order to achieve his ultimate goal, the perfection of his nature.  It is obvious—I expect—that we all need of at least somebody else—our mothers—to be born, and to survive in our first years on this world.  So, since our very entrance in this world, we are socially dependant.  As with our physical growth we so much depend on others in the early stages of our lives, we are likewise dependent on others for our intellectual growth; and so we need other people to teach us what we do not know.  The faculty of language itself is seen as a clear clue to this natural sociability as well. [Back to text]

⁽¹⁷⁾ Which is congruent with the spirit of the Universal Declaration of Human Rights, which states that "everyone has duties to the community in which alone the free and full development of his personality is possible" (Art. 29). [Back to text]

⁽¹⁸⁾ Contemporaneous endeavors at applying mathematics to the analysis of conflict and its resolution can be observed in the important work done from the perspective of game theory (Raiffa, H. 1982). [Back to text]

⁽¹⁹⁾ It is important to emphasize that his conclusions about the state of nature and individual freedom do not proceed from a disagreement with traditional interpretations of natural law within the ius-naturalist school.  In the end, he is not ius-naturalist, since he does not understand nature in the Aristotelian way that attaches to it a law emanating property.  In the end, the law that proceeds from that supposedly natural state is not by continuation but by reaction. By definition, a realist conception of nature cannot possibly attach to it a self-destructive principle, as Hobbes assumes since, as I explained before, the path of discovery of that nature is done starting from the end, which is its perfection. [Back to text]

⁽²⁰⁾ As I pointed out earlier, there is not such an "entrance" in society (even according to Hobbes, the pre-social state of nature is more of a logical category, rather than a phase in a historical process).  Man is naturally sociable andaccording to —the Aristotelian tradition—there is no possible pre-social man, not even as a logical category, since it implies a contradictio in terminis, since the very definition of human being contains the notion of sociability. [Back to text]

⁽²¹⁾ As it could not be otherwise, this trend towards the dehumanization of non-born babies is, for the same very reasons, being endorsed to infants. In an article published by the New York Times on Sunday, November 2 1997, Steven Pinker, professor of psychology at the prestigious Massachusetts Institute of Technology, seriously suggests infanticide as a legal practice.  Reflecting upon the legalization of abortion, Pinker argues that "to a biologist, birth is as arbitrary a milestone as any other" and that babies aren't real people because they don't have "an ability to reflect upon (themselves) as a continuous locus of consciousness, to form and savor plans for the future, to dread death and to express the choice not to die. And there's the rub: Our immature neonates don't possess these traits any more than mice do." The bold is mine, to emphasize the similitude with Rawls conception of autonomous individual as the one capable to design his own "project of life." [Back to text]

⁽²²⁾ For instance, Nader (1993) would probably dub as "harmony ideological" any attempt to subordinate justice to peace.  However, Kelman leaves the door open to escape this line of imputation, since he does not assign to peace a specific category in a hierarchy of values.  Now, it would be interesting to know with what other values peace could interfere. [Back to text]

⁽²³⁾ These concepts are extracted from my own notes on a presentation done by Ali Banuazizi on 11-6-00 for the Seminar organized by PICAR (Program on International Conflict Analysis and Resolution), of the Weatherhead Center for International Affairs, Harvard University. [Back to text]

⁽²⁴⁾ Translation by the author of the Spanish saying: "la caridad bien entendida empieza por casa". [Back to text]

⁽²⁵⁾ Ethic. v, 1 [Back to text]

⁽²⁶⁾ On Duties III, V, 26. [Back to text]

⁽²⁷⁾ Summa, II, 2, q. 58, a. 12 [Back to text]

⁽²⁸⁾ Id. [Back to text]

⁽²⁹⁾ Note that when I talk about 'international' conflict I am referring to all conflicts where the parties involved are not under the same scope of legal and enforceable justice, whether because they constitute different political societies—as in the case of the traditional inter-state conflict—, or because a phenomenon of exclusion has taken place—as in the cases of what is called inter-communal and ethno-national conflicts (without implying any assertion whatsoever about the autonomy or heteronomy in the source of the exclusion). [Back to text]

⁽³⁰⁾ It might be convenient at this point to refresh my perception of every conflict as stemming from an act or situation of injustice, and that I call apparent those conflicts that do not appear to involve an injustice in a first glance.  Thus, if somebody raises a claim is because she or he deems that claim founded on a right—a debt—that is due to her/he for reason of justice.  If that right does not really exist, the claim itself would conform the originating injustice.  And it could happen that the claimant believes bona fide that the claim is found in justice.  In this case there would be just an objective injustice, although not a subjective one, and the mediation forecast in this case should be highly favorable, since it would only take the misunderstanding to be cleared out for it to be successful. [Back to text]

⁽³¹⁾ Even when they are speaking about negotiation, I feel it legitimate to apply the concept to mediation, since the latter can be understood as assisted negotiation. [Back to text]

⁽³²⁾ Under this light, the mere continuation of a project can hardly be used as a yardstick to measure its success.  Indeed, in very lop-sided conflicts the continuation of an approach might even be a sign of bias in favor of the status quo.  The weaker side has typically nothing to lose, so their hopes to get something out of any given intervention can conceivable smother the influence of disappointing experiences.  Instead, it is very difficult to imagine how the continued cooperation from the powerful party can be taken as anything but satisfaction with the outcome. [Back to text]

⁽³³⁾ It is not surprise that Honeyman also acquiesces with the "well-known definition of a mediator as someone who listens to and reasons politely with both parties only until he is sure which is weaker, and then jumps on that one with both feet." (1985, p. 146, emphasis added). [Back to text]

⁽³⁴⁾ From the South African Press Association (SAPA), "District Surgeons Slammed in TRC Submissions" (18 June 1997), quoted by Graybill, Lyn S. (1999).  Pursuit of Truth and Reconciliation in South Africa.  Indiana University Press. [Back to text]

⁽³⁵⁾ That is why diversity is in no way opposed to unity—it rather is complementary.  Harmony (unity) necessitates diversity of notes.  Without diversity, harmony becomes monotony. [Back to text]

⁽³⁶⁾ It is interesting to note, though, that those who seek justice do also yearn for peace.  It does not seem, in a superficial and general analysis, that those who seek peace seek justice as well. [Back to text]

⁽³⁷⁾ Quotation extracted from the internet news agency Zenit in Spanish and translated into English by the author. [Back to text]

⁽³⁸⁾ It is important to note that, when I use the adjective 'written' to qualify the noun 'law', I am not meaning literally written: I am referring to the set of norms (including non-written social uses, legal precedents, etc.) that intend to rule the relationships of individuals within a political community.  Therefore, it does not mean much whether it is written or not.  In fact, the act of writing it (a social costume, for instance) would not make it a separate act of injustice, but it would integrate a single act of injustice, since it would not be but a mere formality.  If I use the word 'written' is only to differentiate it from the notion of natural law, which is 'written' in the nature, but not by the discretion of a given government and neither by the whimsical popular consensus. [Back to text]

⁽³⁹⁾ Guy Olivier Faure offers examples of a very different concept of conflict in both a Western and an Eastern culture.  On the Western part, a French reference dictionary (Le Robert) defines conflict as a "war, an encounter between contrary elements that opposes each other", emphasizing—the author himself—the circumstance that "in French culture, 'to oppose' is a strong term, conveying powerful antagonism; it is the opposite of 'to compromise' or 'to come to terms'".  On the Eastern part, Chinese culture has a similar understanding of conflict, which is usually translated as "fighting" or "struggling" (Bunker, B.B. & Rubin, J.Z. eds. 1995. Conflict, Cooperation & Justice: Essays inspired by the work of Morton Deutsch. San Francisco: Jossey-Bass). [Back to text]

⁽⁴⁰⁾ Needless to say that this would constitute a new injustice which would turn out another conflict succeeding the one resolved through this injustice. [Back to text]

⁽⁴¹⁾ For a time now, I have felt attracted and troubled by the question about the criterion (or criteria) that properly legitimizes —justifies—the organization of a group of people in a politically structured society, or, as some may call it, a 'civil society', or even Commonwealth, to use Hobbes' terminology, or nation state, to use the current way.  It was reading Hobbes that I came to believe that in rejection we may find the answer to it. Of course, it would not be any kind of rejection, but a qualified one.  In the first place, it should be a rejection en mass.  In the second place, the rejection should be political.  No matter how wide the acceptance might be in terms of all other rights—commerce rights, transit rights, location rights, education rights, economic rights, even speech rights—as long as political rights are not fully recognized to a certain group of people en mass there will be a rejection enough to give rise to aspirations for those sovereign rights that Hobbes talks about, and that in our days are exclusively assigned to the so called nation-states. [Back to text]

⁽⁴²⁾ The Problem-Solving Workshops is an approach to conflict resolution that has been developed on the theory of the Basic Human Needs.  I had the privilege of participating in a Workshop conducted by Prof. Herbert Kelman, between Israelis and Palestinians. [Back to text]

⁽⁴³⁾ See http://www.op.org/farrell/companion/comp307.htm [Back to text]

⁽⁴⁴⁾ We should keep in mind that what I refer to as originating injustice is not the reality of the apartheid—that would be a consequent injustice that derives from the apartheid as an accepted system.  Of course, it will never be enough, for a process of reconciliation, to deal with the originating injustice alone: consequent and reactive injustices need to be properly dealt with should reconciliation be expected to enjoy any significance. [Back to text]