A Levinasian Theory of Justice: The Problem of Retribution in Capital Punishment

Cases
Rebecca Broadbent
Eidos, 02nd December 2010.
Introduction
The notion of justice becomes problematic when dealing with issues of
retribution. Families of victims in capital punishment trials often speak of their need
for retribution and justice as they conceive it. It is possible to construct an argument
against capital punishment based upon Rawls Theory of Justice. Rawls sets out the
principles of justice with the intention of aligning the theory itself with our
judgements about what the role and obligation of a political society should be. The
principles of justice are articulated as if they were formulated from a primary
situation which assumes mutually disinterested rationality. But this conception of
justice could be criticised for its failure to acknowledge the importance of retribution
as justice. By drawing on Levinasian considerations we can counter this objection by
appealing to Levinas ethics concerning the responsibility for the Other, thereby
improving the Rawlsian argument against capital punishment.
Rawls Conception of Justice
The Principles of Justice
1.) Basic liberties and duties should be assigned with maximum equality;
2.) Economic inequalities are justified only if they benefit the least advantaged
members of society.
Justice is the first virtue of social institutions, as truth is systems of thought
laws and institutions no matter how efficient and well arranged must be
reformed or abolished if they are unjust.1
The Legitimation of Power
The legitimation of power an authority has is contingent on good reasons. Rawls
good reason thesis can therefore be defined thus;
i)
ii)

Reasons that agents would accept if we were being fair; not

circumstantial.
Reasons that all rational agents would agree to (i.e Kants Categorical
Imperative, making an appeal to Universal Reason)

By adopting the ethical approach of Levinas, we can give weight to the rejection of
circumstantial claims,.
Levinas Project: Ethics as First Philosophy

1 Rawls, J (1971) A Theory of Justice, Harvard University Press, 2003, p. 3

Levinas holds ethical orientation is fundamental to all human existence. Ethics

is a universal mode of being, which orientates us as subjects in the world. The
fundamental alterity of the other person manifests itself in everyday life; we are
constantly surrounded by ethics and relationships with others. It is a primordial
relationship. The encounter with the Other reveals the primordial and fundamental
responsibility the self has for the Other. In this way, ethics is first philosophy.
Ethics as an appeal for goodness and justice: Overcoming Retribution
Levinas is appealing to a metaphysical desire, a desire for goodness
obligations, responsibilities, the call to justice to the radical otherness of the other
person.2 The first human particularity is the relationship with the Other, which
according to Levinas, opens up a goodness. If we are convinced by the Levinasian
model of humanity, we can bypass problems of retribution, on account of our
primordial responsibility to the Other.
The Primordial Responsibility to the Other
At the most base level, the Other, in Levinas words, is the neighbour. Since
ethics is to be found in every intrapersonal relationship, every subject is the Other.
Levinas claims that From the start, the encounter with the Other is my responsibility
for him.3 Levinas justification for the primacy of responsibility is that it is a
fundamental structure of subjectivity. He takes responsibility to mean responsibility
for the other. 4 In responding, we become responsible for Levinas. The Other obliges
me to take on a responsibility that transcends knowledge 5. He strengthens his claim
that responsibility is a fundamental structure of subjectivity with a critique of
Heideggers solitary Dasein.
Levinas claims that Daseins understanding of Being presupposes an ethical
relation with the other human being, that being to whom I speak and to whom
I am obligated before being comprehended. Fundamental ontology is
fundamentally ethical. It is this ethical relation that Levinas describes as
metaphysics. 6

2Levinas, E (1981) Otherwise Than Being or Beyond Essence, translated by

Alphonso Lingis, Duquense University Press, 1999, p. xii.
3Levinas, E (1998) On Thinking-of-the-Other, translated by Michael B. Smith and
Barbara Harshav, The Athlone Press, London, 1998, p. 103.

4Levinas, E (1996) Ethique et Infini, Livre de Oche, 1996, p. 91.

5Hand, S (2009) Emmanuel Levinas, Routeldge, 2009, p. 42.
6Critchley, S Leaving the Climate of Heideggers Thinking in Levinas in
Jerusalem: Phenomenology, Ethics, Politics, Aesthetics, edited by Jolle
Hansel, Springer, 2009, p. 48.

Levinas asserts that responsibility for the Other is prior to all civilisation and
is not any sort of cultural gesture.7 Responsibility is an individuation 8. By this,
Levinas means it is responsibility which gives us selfhood.
Why be moral? Against Retribution
Given Levinas position that we are granted selfhood in response to the
responsibility to the other, why should we accept this as a reason against retribution?
Levinas response is that the subject is given to itself in responsibility in the prephilosophical experience of ethical summons:
The subject appears not spontaneously but in response to the summons of
the other the subject attains ipseity in submitting to its subjection to the
summons that demands responsibility. I am thus myself in an original
inappropriateness without being the source or master of that self; for I receive
myself from a relation to the other, who is there before I am 9
Levinas justifies this with the claim that contrary to Heidegger, the event
which inaugurates me with my selfhood, rather than death being my ownmost
possibility10, that which individualises me, it is the fear for the death of the Other
which makes me me. Death is not which individualises me, contrary to Heidegger; it
is the encounter I have with, and the responsibility I have to the Other which grants
me my selfhood.
The subject is inseparable from exposure to this appeal or election which
cannot be declined. This exposure to the election of the other is so radical that
I cannot evade or slip away from it without losing the me that I am
responsibility [is]prior to any commitment. That is, prior to any choice on my
part and without regard for any thought or action I may have committed, the
other summons me as responsible.11
Conclusion

7As cited in Love Strong as Death, Levinas and Heidegger, Jeffrey L. Kosky,
in the Exorbiant; Emmanuel Levinas Between Jews and Christians, eds. Kevin
Hart & Michael A. Signer, Fordham University Press, 2010, p. 110.
8 Ibid., p. 111.
9 Love Strong as Death, Levinas and Heidegger, Jeffrey L. Kosky, in The
Exorbiant; Emmanuel Levinas Between Jews and Christians, eds. Kevin Hart &
Michael A. Signer, Fordham University Press, 2010, p. 112
10 Heidegger, M (1927) Being and Time, 50: 294.
11 Ibid., p. 113.

The choice of whether to accept Levinas claims depends on two things: firstly, that
which he describes as the categorical imperative of assuming responsibility 12, and
secondly the conception of justice as humanitys deepest and most pressing ideal 13.
Levinas could be criticised on the basis of having a philosophy which appears
utopian: why should families of victims feel compelled to take on this responsibility
for the Other of which Levinas speaks? Levinas claim however is that this
responsibility isnt something one takes on it is already given, simply by virtue of
being in relationships with people.

12 Levinas, E (1987) Outside the Subject, translated by Michael B. Smith,

Sanford University Press, 1993, p. 158.
13 Cohen, R. A, Buber and Levinas and Heidegger in Levinas and Buber,
Dialogue and Difference, edited by Peter Atterton, Matthew Calarco &
Maurice Friedman, Duquesne University Press, 2004, p. 248