The Subjectivity of Sympathy

For this blog I wanted to focus on idea of subjectivity in Kelsen’s essay “What is Justice?” and how it, in my opinion, serves as a response/contradiction to Hume.

While we were covering Hume, one of my main issues with his essay was his claim that sympathy gives justice its moral basis. For Hume, we condemn injustices because we recognize that pain or inutility that has been caused by that action, and we therefore experience displeasure through sympathy and identify that action as unjust. Just actions, on the other hand, are supposed to inspire a feeling of approval that the system is working and serving to the good of the whole. Hume claims that when making moral judgments, we are judging that particular action’s usefulness and agreeableness for everyone, with the tendency towards societal happiness.

My problem with that theory was that Hume based his essay on the assumption that everyone has the same innate sympathies, that we would all feel the same way about the same event. This just seems unlikely, and I’m still not convinced.

Kelsen, on the other hand, provides a much more realistic view on the concept of how human sympathy relates to justice. Kelsen realizes that people will have different responses and feelings about the same action because they are influenced by their environments, and as individuals will have unique value systems. Kelsen believes that a just social system based on the happiness of the people is impossible, and makes his argument by showing that justice based on value judgments are subjective, since one cannot objectively prove that one value is greater than another and therefore cannot apply a theory of justice to such a system. Kelsen, describing Legal Positivism, uses this idea as the first foundation of his “Pure Theory of Law,” stating that “legal theory is a science that is uncontaminated by value-judgments” and is therefore a value-free, methodological practice. Every legal system then derives validity, not from the positive sympathies of the people, but rather from the acceptance and basic agreement of the Grundnorm between the members of the community. In order to have any normative claims (“ought” statements), there must be a presupposed principle (Grundnorm) that makes it valid. A Grundnorm is not an “is” statement, but is identified as objectively true because of intersubjectivity, meaning all those involved believe it.

In this case, I view Kelsen’s approach to be more understanding of sympathy in humans. While we do all have some sense of fellow-feeling, he recognizes that that cannot serve as the basis of a just society as Hume claims. This makes more sense to me, but I’m curious to see if anyone feels the opposite.