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Proceso 926
November 8, 2000
ISSN 0259-9864

INDEX

Editorial Real truth and legal truth
Politics Political liberalism
Economy The government faces the problem of the environment
 
 
 

EDITORIAL

    “Justice is blind” according to a popular saying which is open to various interpretations: on the one hand, with such a declaration one can be given to understand that justice does not favor one side or the other—because she is blind--; on the other, one could imagine, from a less pessimistic point of view that justice is impartial and does not, therefore point out anyone in particular, but only at anyone who gets in her way. Both interpretations are not exclusive because, in countless cases, the pretended impartiality of justice is translated into clear mistakes, the practical result of which is that often innocent people end up in jail while high level criminals are exonerated of their penal responsibility.

    It is, at times, forgotten that modern justice systems—inserted into the liberal tradition—are designed precisely to insure that innocent individuals are not deprived of their freedom. More than establishing the guilt with regard to a crime, her philosophy is that of protecting to the maximum the suspect from a punishment that would abridge his or her freedom. From this follow all of the requirements that ought to be complied with step by step in order to arrive at penal condemnation; if there is a fault in one of these, if that fault gives rise to a reasonable doubt about his or her innocence, the condemnation lacks legitimacy on a legal level. In complying with all of the requirements of the law and putting the proofs and evidence together so that there is no reasonable doubt about the innocence of the person suspected: these are the demands of a modern justice system in order to arrive at judicial truth—which is to say, at confirmation, founded on conclusive proofs and in respect to legality, that a specific individual is responsible for the crime of which he or she is accused.

    It is true, on countless occasions that compliance with these requirements is not sufficient guarantee that an innocent person is not to be condemned. But the idea is to minimize this risk to the limit. As a counterbalance, cases abound in which those individuals who, because they do not comply with the necessary legal exigencies, are responsible for serious crimes are enjoying unmerited freedom. These are perhaps the inevitable costs of the justice system whose inspiring philosophy is worth less than the risk of offering freedom to a criminal than making a mistake and depriving an innocent person of freedom. Starting from the premise of the philosophy of liberalism, one should not forget the defense of the individual against everything that should go against the abridgement of his or her freedom is a task of the greatest importance. And this is so because—as Isaiah Berlin once said—for liberal thinkers there is a certain limit of personal freedom in the human being which “cannot be violated under any concept, because if such a limit is trespassed upon, the very individual is found to be in an overly restricted situation, even for the very development of his or her natural faculties, which is the only thing that can make it possible to pursue or even conceive of the diverse goals which men consider to be good, just or sacred.

    Beside, and parallel to, legal truth is to be found real truth, which do not necessarily have to coincide one with the other. In the case of criminal acts, real truth is based upon these acts, as well as upon a reasonable amount of certainty who was directly or indirectly responsible. What is ideal is that real truth might become judicial truth. But this transition is not automatic, nor is it guaranteed beforehand, as is well demonstrated by the countless failures of justice as much in the condemnation of innocent people as in the exoneration of those who are guilty. So it is, then, that real truth and judicial truth cannot coincide; and that is so because they are ruled over by distinct kinds of logic: the first, because of the weight of the facts and because of the reasonable certainty of those who were responsible for these acts. The second, because of the legal exigencies and proofs which are derived from these exigencies. Evidently, beyond the bad faith of the first and the errors in procedure of the second, in both there exist the certain possibility for equivocation, against which the pertinent corrective procedures have not yet been invented.

    All in all, what is not placed in doubt is that the only way of sanctioning the person responsible for the crime under the penal category is by means of legal truth. Thousands of proofs and arguments could be raised against the person who caused an affront or assault against human dignity. The certainty that that person is responsible for the most atrocious crime could be more than reasonable. In the eyes of society, such a person could be the most hated and most scorned...But that does not automatically translate into a judicial condemnation, which must follow a process, the procedures of which are inspired in a philosophy which protects the individual by means of immunity, even should that person be the worst criminal that humanity has every known. The topic “no one is guilty until it is proved contrary” illustrates well this philosophy which protects the individual: it is a question of not finding the guilty party, but of protecting he or she who, from the very beginning, is presumed to be innocent.

    For all the foregoing, one can well understand that in the unfolding of a judicial proceeding what counts are the procedures, the proofs, evidence against, all judicially based. The truth which is arrived at—legal truth—cannot coincide with real truth: the absolution of an individual by a tribunal—or his condemnation—can say little about the real deed or act for which the person is declared innocent or guilty. The best person in the world can be found legally guilty of the most atrocious crime although he or she did not commit it. The most perverse criminal, publicly recognized as such, can be declared legally innocent, but have the ability—or the luck—to avail him or herself of alibis which will allow him or her to escape.

    Such is the paradox of justice. Things being as they are, one must take care at the moment in time in which persons who have successfully dealt with a judicial proceeding are presumed to possess moral goodness. In many cases, judicial innocence can coincide with real innocence. In others, it is probable that the opposite might happen-—that is to say, that the first may have nothing to do with the second. A good example of this last phenomenon is the development and unfolding of the judicial case against the retired Salvadoran generals Eugenio Vides Casanova and José Guillermo García. One would have to be blind—or obtusely ignorant of the recent history of El Salvador—not to take note of the enormous responsibility that both had in the death, torture and disappearance of thousands of Salvadorans. Their responsibility in the assassination of the four North American religious women was one more case in the war against “the communist enemy” in which both military men—and the Armed Forces—are found to be involved up to their eyeballs. This is a real truth that, forasmuch as they have been judicially exonerated, neither they nor the apologists for their “triumph” can erase.

POLITICS

    The basic question with which we begin the discussion of the topic referred to in the title is the following: How is it possible that a just and stable society of free and equal citizens can exist for a long period of time, profoundly divided by reasonable, religious, philosophical and moral doctrines? In answering this question, John Rawls demonstrates that social institutions rest upon a basic idea that understands society as a “just system of cooperation between free and equal citizens” (J. Rawls, Political Realism. Mexico, FCE, 1995, p. 29). From this premise he begins his debate concerning the political principles of liberalism. In the opinion of this author, “political liberalism presupposes that the most acute struggles take place with regard to the highest values, for that which is most desirable: about religion, about philosophical visions concerning the world and life and about diverse moral conceptions of what is good”. So then, the great challenge facing social construction is sustained around the capacity and efficiency of political consensus which, while it respects and nourishes differences, succeed in achieving a just cooperation among citizens without underestimating their freedom and equality.

Political justice

    “For a political conception of justice to be acceptable,” says Rawls, “it must coincide with our thoughtful convictions at all levels of generality, based upon due reflection, or, what elsewhere I have called reflexive equilibrium”. For this reflexive equilibrium to obtain, there are some principles which ought to uphold the idea of justice. On the other hand, it is necessary to recognize that “each person has the equal right to demand a schema of equal rights and freedoms completely appropriate, a schema which might be compatible with the same schema for everyone, and in this schema, equal political freedoms and only these freedoms, must be guaranteed as to their just value”. Also, “social and economic inequalities are only justified under two conditions: in the first place, they will be related to posts and positions open to everyone, in conditions of opportunity and equally fair for everyone. In second place, these positions and these posts must be exercised for the maximum benefit of the least privileged members of society”. These two principles must be the platform upon which the concept of political justice is based.

    Not only rights, freedoms and basic equalities are, therefore to be guaranteed, but their institutionality is also to be guaranteed. With this conceptualization, the author is assured that the freedom and equality announced may not be solely formal freedoms and equalities. The just value of political freedoms is to be guaranteed, a just equality of opportunities and the “so-called ‘principle of difference’, which prescribes a situation in which social and economic inequalities inherent in the posts and positions will have to be adjusted in such a way that whatever may be the degree of such inequalities—be they large or small—in the greatest benefit for the least privileged members of society must result”. From these premises, one begins to establish a definition of what society is.

Society as a just system of cooperation

    The society where the concept of political justice must be respected and promoted is understood as a just system of cooperation. In Rawls’ opinion, it is a closed society where the members enter because of birth and leave because of death. For this reason, one is inserted into a determined culture, in this case a democratic culture and accepts, without coercion, the achieved and inherited accords and agreements. In such a way that there are two principles which guide the conception of the members of this society: they are free and equal.

    The cooperation between the persons making up the society “is guided by publicly recognized rules and by procedures which those who cooperate accept and which are considered as appropriate norms for guiding their conduct”. Nevertheless, this cooperation does not take place exactly in the measure in which it might be just and reciprocal and in which each participant does not have a certain “advantage or rational good”. Reciprocity (justness, mutual advantage of each participant) is a relationship between citizens expressed by means of the principles of justice which regulate a social world in which each one ends up benefiting, in which there is respect for a pattern of appropriate equality, defined in relationship with this social world”.

    Persons—those who cooperate in a social way—are considered as free and equal inasmuch as they are citizens and are subject to moral powers. This is to say, they have the capacity to adopt a conception of good. “The sense of justice is the capacity to understand, apply and act according to the public conception of justice which characterizes the just terms of social cooperation”. But what is the most appropriate conception of justice which takes account of this society as described in its “evaluation” of persons? It is justice understood as impartiality. Justice as impartiality is most apt for the conceptualization of social links where equality rules, which is freedom in a democratic society. This impartiality ought to be present in the institutions, which are considered as social entities which incarnate the conception of persons as equal and free.

The original position

    All of the foregoing is based, for Rawls, upon the supposition of a socially achieved consensus. This consensus is supported by the idea according to which, from political liberalism, it is possible to go beyond the differences which characterize the persons who make up a determinate society. Beginning from the premise of democracy, the basic supposition of this political liberalism, persons are to be respected and considered as equal and free. Rawls uses the term “original position” in order to take account of the nature and limits of the social agreement achieved based on the just treatment of equal and free persons. This agreement has the following characteristics: it is a political agreement, not a coerced agreement, it is a model of freedom, of equality and it is just.

    To highlight the political aspect of the agreement allows one to see its limits. One does not enter into the purviews of religious, “moral” conceptions and the intimacy of persons. The non-coercive aspect makes reference to the fact that no person or social group can impose upon the rest its vision of what they should be in agreement on. For this reason, it does not rest upon any determined philosophy, although it may not be denied that one can be influenced by some cosmic vision present in the environment. But Rawls takes care to express that if the foregoing exists, it does not exist in a tacit manner, and it is only a cultural expression. In this way he avoids the possibility of returning to old schema where, from a determinate religious vision, the world is organized and laws are imposed and modes of behavior are imposed upon the rest.

    On the other hand, the agreement models freedom and equality. It is a recognition of the social restrictions, many times biased, but which orient the actions of individuals. “The veil of ignorance, in order to cite a prominent characteristic of the original position, does not have specific metaphysical implications about the nature of the ‘I’ or ‘ego’; does not imply that the ‘I’ or ‘ego’ is ontologically previous to the acts about which the persons involved ought not to know and ought not to take into account. We can, if it may be said in this way, adopt this position at any point in time simply by reasoning with principles of justice in accordance with the restrictions about the information which we have enumerated. When, in this way, we simulate being in the original position, our reasoning no longer commits us with a determinate metaphysical doctrine about the ‘I’, or ‘ego’.” Do our societies comply with these minimal exigencies? It is a question, the response to which ought to be explored with much attention to detail and with the required critical attitude.

ECONOMY

    In Latin America, the topic of the protection of the environment began to acquire greater importance in the context of the programs sponsored by the industrialized countries, which have channeled significant funding into the government administrations of the less developed countries in order to implement “sustainable” politics on the question of natural resources. El Salvador has been no exception and, in recent years, important programs for the restoration of natural resources have been developed, by means of programs such as the Environmental Fund of El Salvador and the America’s Initiative Fund for El Salvador, which work with donations from the Canadian government and in pardoning the foreign debt conceded by the government of the U.S. In the same way diverse U.S. and European cooperative agencies also implement programs for the recuperation of the environment by means of diverse local or international organizations.

    But, independent of the impulse environmental forces receive from abroad, what is true is that there still does not exist a link between governmental discourse and their practices on the question of the environment, in spite of the fact that there is no longer any need to argue overmuch concerning the drying up of natural resources in the country and the implications of this for the “sustainability” of development: economic growth and the reproduction of life itself can be committed if it continues with the current model for the use of natural resources.

    Salvadoran administrations have traditionally offered up a policy of harmonizing economic growth and environmental protection beginning with the First Summit Conference on the Earth held in Rio de Janeiro in 1992. From this arose the first elements of a national strategy on the question of the environment, which then began to be studied and generated new results such as the creation of the Ministry of the Environment and Natural Resources and the Law of the Environment promulgated in 1998.

    Paradoxically, although there is an institutional and legal framework which governs the use of natural resources and environment, very obvious problems persist, the solution to which depends exclusively upon the central government, while in other cases governmental entities do not act en response to evident cases of contamination of natural resources, even when the law itself has the implementing provisions to allow it to do so.

    In practice, it turns out to be obvious that the environmental policy of the government does not go beyond pure rhetoric because, on the one hand, the Ministry of the Environment does not carry out its functions adequately and issues ambiguous resolutions which do not seek to resolve problems in a basic and fundamental way. And, on the other hand, the application of environmental norms still has not been possible because, in spite of the fact that an environmental law exists, there are no regulations which guide its application.

    So it is that, while the government subscribes to international treaties for the protection of natural resources and receives donations for the protection of the environment, on the other hand it acts in a complaisant way with private enterprise which is involved in highly contaminating activities and/or which require high quotas for the extraction of natural resources. Even worse, the state itself becomes a transgressor of the law of the environment inasmuch as some of its businesses do not take decided measures for the prevention of the contamination of water as a resource. This, apart from reflecting inconsistencies between their discourse and their practice, it also makes evident that the government is still not willing to place any major emphasis on the environmental topic—not even with respect to its own internal policies.

    In fact, it is sufficient to review some examples in order to note the complexity of the topic of environmental protection and the passive attitude of the state seems to take in these cases. Consider the case, for example, of sewage, where the National Administration of Aqueducts and Water Carriers (ANDA) does not engage in any treatment of the sewage issuing from homes and limits itself to moving the untreated sewage which, in many cases utilized for the potable water supply. In the case of the city of San Salvador, the situation is so chaotic that the water from the rivers and streams which crisscross the country often do not comply with the internationally accepted limits for contamination. Even the water which is supplied by the “potable” water system may be contaminated with bacteria and fecal matter as has been many times demonstrated on repeated occasions in toxicological studies. The high incidence of gastrointestinal sicknesses from which the majority of the population suffers is not surprising, therefore.

    In other cases, governmental responsibility arises from the omission of the application of the norms because even though there is an environmental law which allows the initiation of a process for the reduction of unsustainable tendencies for the use of natural resources, they do not comply. For example, in the case in which the contamination generated by industry it is worthwhile mentioning that, in accordance with data of the World Bank, for the mid-point of the decade of the 1990’s, only 9 out of a total of 145 industries situated in the city of San Salvador treated their discharges; this is to say, only 6.2% of them. In the case of agricultural industry, the situation is worse because permanent monitoring practically does not exist in such a way that it guarantees a situation in which the discharges resulting from highly contaminating activities such as the processing of coffee or sugar cane might be adequately treated.

    The government still has not decided to implement an environmental strategy and policy in spite of the fact that evident signs exist that the situation cannot obtain for much longer given that there even exists the threat that the water supply is might be contaminated or because of the end of the drying up of the aquatic wellsprings and bodies of water.

    Nevertheless, the problem not only has a political-institutional dimension, but also the economic dimension which could cause problems of viability for any proposal would be the sustainable handling of natural resources. In applying a rigorous regimentation of contaminants, many businesses and homes must suddenly pay a greater price for the treatment of toxic wastes, which will evidently change the situation of the market in a significant way: businesses will raise their costs of production and prices to the consumer must be greater in order to duly reflect the environmental cost of production and lower the level of wellbeing of the society in the long run.

    Nevertheless, this reduction in the short-term well-being will be amply compensated for in the future because it will lay the foundation for economic and social development which will be environmentally viable. Evidently, the task is not easy, but owing to the basic character in any strategy of development it ought to be seriously taken up without major delays by all actors involved and especially by the government.