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Levinas and the Problem of Justice

Peter Atterton

University of California, San Diego


Yet I shall temper so

Justice with mercy


John Milton, Paradise Lost




The question of the legitimacy, justification, and limits of violence, particularly in the political sphere, has a long and varied history in the West. Whereas Roman writers such as Cicero and Ulpian tended to offer prudential reasons for the use of force, arguing that self-defense and the protection of one's property constituted lawful grounds for killing,[1] the early Church Fathers, such as Ambrose and Augustine, emphasized the moral duty to defend one's neighbor from injury and oppose the violation of peace. In De officiis, Ambrose went so far as to say:


fortitude which in war preserves the country from the barbarians, or helps the infirm at home, or defends one's neighbor's from robbers, is full of justice. . . . (1.27.129) He who does not repel an injury done to his fellow, if he is able to do so, is as much at fault as he who commits the injury. (1.36.179)[2]


The fact that Ambrose was a Christian should not mislead us into thinking that he was merely applying to the situation of war the insight found in the Gospels: "Greater love hath no man than this, that a man lay down his life for his friends" (John 15:13). Rather, he seems to have been following directly in the tradition of the Psalmist: "Defend the poor and the fatherless: do justice to the afflicted and needy. Deliver the poor and needy: rid them out of the hand of the wicked" (Ps. 82:3-4). It was this jus bellum tradition in Judaism that Tolstoy repudiated when he dismissed parts of the Hebrew Bible as "crude, primitive, and immoral"[3] because they failed to promote the kind of pacifism encapsulated in Sermon on the Mount, and the command "not to resist one who is evil" and "to turn the other cheek" (Matt. 5:39-40). Thus, Tolstoy exhorted his readers to


fight, not with more violence, but rather by means of preaching non-violence and love—and, most importantly, by being a living example of non-violence and sacrifice, because for a Christian in this world who wants to fight violence, there is no more effective way than by sacrifice, and sacrifice right to the end.[4]


While Tolstoy may have helped Levinas serve his apprenticeship in philosophy,[5] he appears to have had little if any influence on Levinas's thinking in relation to the question of violence. This is perhaps not surprising when we recall the importance of the Hebrew Bible for Levinas, which he read from childhood alongside Russian literature.[6] Moreover, the experience of being Jewish, and witnessing persecution at firsthand, first as a Jew in Lithuania, and then again during World War II, doubtless did little to commend pacifist doctrine in Levinas's eyes.. But how does Levinas justify the use of violence in a manner that is consistent with his philosophical ethics? The question is made particularly difficult by the fact that Levinas considers the meaning of the face to be expressed by the command "Thou shalt not kill." How then does one remain in relation to the Other face to face while using violence and force? And if that is not possible, how does one justify the break with ethics in the concern with justice that necessitates the use of force? By examining various texts and interviews mostly postdating Totality and Infinity, I shall attempt to reconstruct Levinas's argument, whose conclusion is similar to Ambrose's, that force is justified when it is used to defend the third party (le tiers) from the injury caused by others. I shall also try to show how ethics has always to be criticized from the perspective of justice, which must be criticized from the point of view of ethics in turn, if justice is not become a tyranny.


The Violence of Ethics


The problem of justice and the third party is introduced in chapter five, section three of Otherwise Than Being, entitled "From Saying to the Said, or the Wisdom of Desire." There we read at length:


If proximity ordered me only to the other alone, there would not have been any problem, in even the most general sense of the term. A question would not have been born, nor consciousness, nor self-consciousness. The responsibility for the other is an immediacy antecedent to questions; it is proximity. It is troubled and becomes a problem when the third party enters.

The third party is other than the neighbor but also another neighbor, and is also the neighbor of the other, and not simply his fellow. What then are the other and the third party for one another? Which passes before the other in my responsibility? The other stands in a relationship with the third party, for whom I cannot entirely answer, even if I alone answer, before any question, for my neighbor. The other and the third party, my neighbors, contemporaries of one another, put distance between me and the other and the third party. "Peace, peace to the neighbor and the one far-off" (Isaiah 57:19)—we now understand the point of this apparent rhetoric.[[7]] The third party introduces a contradiction in the saying whose signification before the other until then went in one direction.[8]


It might be thought that Levinas here is simply defending the liberal principle of equal consideration of interests, and arguing that we need to universalize our maxims if we are to do justice to the third party. I would suggest that the situation is more complex than that, for two reasons. First, Levinas insists that in no way does justice imply any "degradation of obsession, a degeneration of the for-the-other, a diminution, a limitation of anarchic responsibility" (AE 203; OB 159). Despite the fact that the entrance of the third party introduces a "contradiction in the saying whose signification before the other until then went in one direction," this cannot be viewed as a pretext for ignoring one's absolute obligation to the Other, which is "antecedent to questions," according to Levinas.


Second, it is not clear how concern for justice can justify punitive and repressive measures—a certain violence—when the face would appear expressly to forbid them. Does not Levinas describe the face as "inviolable"?[9] The issue is further complicated by the fact that in Totality and Infinity Levinas states that the Other's "justified existence is the primary fact."[10] How is one justified in repressing the Other when the Other's "existence" is already justified? The obvious response is to say that the existence of the Other is no longer justified when he or she injures the third party. However, to speak of the Other in this way would amount to saying that the Other's freedom is essentially the same as mine, something Levinas emphatically denies: "The strangeness of the Other, his very freedom!" (TeI 46; TI 73). "The other is not opposed to me as a freedom other than, but similar to my own. . . . The Other is not another freedom as arbitrary as my own" (TeI 146; TI 171). Few people would deny the third party the right of self-defense. But Levinas's theory even makes this seemingly incontrovertible tenet problematic. For what does it mean to say that that "another neighbor" is justified in retraining the already justified freedom of neighbor who is the Other?


Questions like these are bewildering, and it is difficult to know where to begin to resolve them. Things would be relatively straightforward if the Other had simply forfeited his or her rights as a face through infringing on the rights of the third party. This would be the traditional liberal response of someone like Locke, for example, who in his second Treatise of Government defends the right to


to secure Men from the attempts of the Criminal, who having renounced Reason, the common Rule and Measure, God have given Mankind, hath by unjust Violence and Slaughter he hath committed upon one, declared War on all Mankind, and therefore may be destroyed as a Lyon or a Tyger, one of those wild Savage beasts, with whom Men can have no security.[11]


Levinas, however, rejects the idea of a forfeiture of rights. In an interview that took place at the time of the Klaus Barbie trial (1987), Levinas recalled a question that Jean-Toussaint Desanti had once asked a young Japanese student who was writing on his (Levinas's) ethics. The question was whether "an SS officer has what I call a face." Levinas replied:


a very troubling question that calls, to my mind, for an affirmative answer. An affirmative answer that is painful every time![12]


The fact that the members of the SS have "a right to a defense and respect [droit à une défense, à des egards]" (AP 59), a right that they absolutely refused to extend to their victims, explains why there are no easy replies at this moment, why Levinas's response is—in a manner reminiscent of Alyosha in The Brothers Karamazov—so "painful."[13]


So how does Levinas justify punishing and repressing the face—for example, the face of Klaus Barbie? Does not the heavy premium he places on the face preclude the possibility justice altogether? In a short article written against the death penalty entitled "An Eye for an Eye" (1963), appearing two years after the publication of Totality and Infinity, Levinas appeared to concede everything to the pacifist camp when he wrote, "violence calls up violence, but we must put a stop to this chain reaction" (DL 209; DF 147). If violence only gives rise to more violence, how can it rightly be called "just," precisely defined in terms the struggle against violence?


Levinas doesn't always claim that violence gives rise to violence. Indeed, in "Judaism and Revolution," a Talmudic lecture given in 1969, he argued that violence is unavoidable in some cases. "Unquestionably," he said, "violent action against Evil is necessary."[14] Invoking the authority of Rabbi Eleazar, he wrote: "if I am violent it is because violence is needed to put an end to violence" (DS 45; NT 114). There can be no question of refusing violence outright. Not only is the doctrine of non-violence powerless to put an end to violence, it risks complicity in violence. In a polemical essay entitled "Simone Weil Against the Bible" (1952), written half way through the bloodiest century in history, Levinas wrote:


The doctrine of non-violence has not stemmed the natural course toward violence displayed by the whole world over the last two thousand years. . . . The extermination of evil by violence means that veil is taken seriously and that the possibility of infinite pardon tempts us to infinite evil. . . .  It is precisely this inanity of charity—this resignation at the base of the most active charity, to the misfortune of the innocent—which is a contradiction. Love cannot overcome it, since it feeds off it. To overcome it we must act. . . . Life is not passion. It is an act. It is in history. (DL 196-200; DF 138-141 modified translation)


Not that Levinas is indifferent to the risk that violent action also presents in history. In "Judaism and Revolution," he made a point saying that "it is not only a question of seizing the evil-doer but also of not making the innocent suffer" (DS 38-9; NT 110). Even if we can agree on the justice of going to war (jus ad bellum), there is still the morality and legality of various actions performed in the course of waging war (jus in bello) to consider. In Otherwise than Being, we are told:


The true problem for us other [[15]] Westerners is not so much to refuse violence as to question ourselves about a struggle against violence that, without blanching in non-resistance to evil, could avoid the institution of violence out of this very struggle. Does not war against war perpetuate that which it is called to make disappear in order to consecrate war and its virile virtues in good conscience? (AE 223: OB 177 modified translation)


If violence is to avoid calling up more violence, if it is to put a stop to this chain reaction, then we must be "patient" (AE 223; OB 177). "In the just war waged against war," Levinas writes, "a relaxation of essence to the second degree is needed to tremble or shudder at every instant of because of this very justice" (AE 233; OB 185).[16] Only thus, according to Levinas, is it possible to


feel an essential link which connects the spirit of patience to the true revolution. This revolution comes from great pity. The hand that grasps the weapon must suffer in the very violence of that gesture. To anaesthetize this pain brings the revolutionary to the frontiers of fascism. (DL 219; DF 155)[17]


Although Christian pacifism is not an option when the Other is an aggressor, it is not something we can refuse in good conscience. Here, we find ourselves caught in a sort of Derridean "double-bind": if fulfill my duty to the Other as much as is humanly possible, then I fail to do my duty to the third party as well as tempt "infinite evil." If, on the other hand, I discharge my obligations to the third party, I fail to do my duty to the Other and risk perpetuating evil by making the innocent suffer. It seems that whatever course of action I adopt I am in the wrong, caught in what logicians call a "constructive dilemma."


Levinas accepts the soundness of the argument, and thus the impossibility of escaping between the horns of the dilemma. Violence is inevitable. The best one can hope for is to palliate the violence as much as possible. Such is the role assigned to charity after justice.[18]


Justice and Charity


In "Simone Weil Against the Bible," Levinas criticized Christian love and charity because of their complicity in violence against the third party. In "Philosophy, Justice, and Love," an interview that took place in 1983, Levinas continued to oppose love and justice, though the term love was now given a positive meaning and associated with the Greek agape, which the Romans translated as caritas (in contradistinction to amor sensitivusi). Love was still regarded as exclusivity oriented in the direction of the Other but its ethical aspect was emphasized rather than its passionate (or "pathological" in Kantian parlance) aspect. Accordingly, it was conjoined with the "`vision' of the face . . . as it applies to the first one to come along" (IR 165). This was in direct contrast with justice, which is traditionally blind in the sense of being impartial. ("The judge does not look at the face of everyone" [Deut. 11:7][19]). Levinas took this to mean that the Other who stands before the court of law is no longer looked directly in the face. He or she features in comparison with others, and is thus judged according to universal laws and general principles. Such is what Levinas in an interview conducted in 1986 by François Poirié dubbed the "first violence, [the] contestation of uniqueness" (QV 97; IR 51). Justice is from the first violence. It has therefore always to correct its own institutional blindnesses and failures, paradoxically its own injustice, by finding ways to attend to the face of the Other once more. As Levinas puts it,


Justice is awakened by charity, but the charity that is before justice is also after [justice]. . . . It is necessary that I rediscover the unique, once I have judged the thing; each time anew, and each time as a living individual and as a unique individual who can find, in his very uniqueness, what a general consideration cannot find. (QV 98; IR 52)


The task of "rediscovering" the uniqueness of the Other is reserved for philosophy. This is not merely one area of philosophical inquiry among others, e.g., epistemology, logic, and aesthetics. Rather, it changes the very meaning of philosophy insofar as it transforms the thinker's vocation from the search for truth to the search for a better justice. In Otherwise Than Being, Levinas writes:


Philosophy serves justice by thematizing the difference and reducing the thematized to difference. It brings equity into the abnegation of the one for the other, justice into responsibility. (AE 210; OB 165)


This "reduction" of philosophy by philosophy constitutes an "an incessant unsaying [dédire] of the said [le dit]" (AE 228; OB 181) or an "endless critique" (AE 57; OB 144) of its own ontological language, which is incapable of saying the identity of the Other without distortion and violence, and which thus remains to be "unsaid" or retracted in turn if the difference (or what Levinas in Totality and Infinity called "separation" [e.g., TeI 75; TI 102]) between me and the Other is to be maintained.


In the concrete, this amounts to the continual reexamination, revision, and amendment of existing governmental policies, political and judicial procedures, laws, statutes, and institutions conforming to the liberal State. While Levinas confesses to a Platonic or "a utopian moment"[20] in his thinking here, one that is governed by ideal of a polis that "holds justice as the absolutely desirable end and hence as a perfection" (PM 177), he also considers it obvious that "a liberal state is more moral than a fascist state, and closer to the morally ideal state" (PM 178) inasmuch as it is presided over by "the consciousness that the justice on which the State is founded is, at this moment, still an imperfect justice" (QV 118; IR 68). The liberal State is thus said to have within it "an institution that is not of the State" (QV 119; IR 68). Such is the surplus of ethics qua charity that founds the just State and counteracts its tendency to become Stalinist or totalitarian. Levinas asserts:


in the State where laws function in their generality, where verdicts are pronounced out of a concern for universality, once justice is said there is still, for the person as unique and responsible one, the possibility of or appeal to something that will reconsider the rigor of this always rigorous justice. To soften this justice, to listen to the personal appeal, is each person's role. It is in that sense that one has to speak of a return to charity and mercy. Charity is a Christian term, but it is also a general biblical term: the word hesed signifies precisely charity or mercy. (QV 119; IR 68-9)


Having judged the face justly according to universal laws it is necessary once again to place oneself under the judgment of the face so as to soften this justice, lessening its severity. Needless to say, charity here does not simply cancel or annul the justice it "arouses." It follows justice, which becomes perverted without it.


If the most just procedure is that which is concerned to correct its own injustices and blind spots, then the most just procedure is that which accommodates charity. Levinas gives the abolition of the death penalty as a fine example of the "coexistence of charity with justice" in (QV 97; IR 51).[21] This is not simply because la peine de mort clearly destroys the condition for the possibility of charity after justice, but also because the abolition is an obvious instance where the face and the commandment "Thou shalt not kill" is respected. Nevertheless, it is the death penalty, i.e., killing as retribution and punishment, that "no longer belongs to justice" (AP 58), according to Levinas. As Cicero says: "When weapons reduce laws to silence, they no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice, too—and meanwhile they much suffer injustice first."[22] Killing is permissible only when there is no other way to protect the lives of innocents. Charity becomes an option only when lives are no longer at risk and the initial danger has been averted. In Shakespeare's words: "The quality of mercy is not strained" (The Merchant of Venice 4.1.183).


To conclude: The ethical relationship with the Other is complicated by the presence of the third party, enormously so. Am I not responsible for the third party, "another neighbor," likewise? Who therefore merits the most care and attention? Whose needs are the most urgent? In fulfilling my obligations toward one do I not in turn risk not only ignoring but also injuring the other? The presence of the third party, which introduces a problem or "contradiction" in responsibility itself, gives rise to the question: "What have I to do with justice?" (AE 200; OB 157)


However, justice raises ethical questions in turn. Insofar as justice, which is traditionally blind, judges the Other, not individually on account of his or her face, but according to universal rules and thus in absentia as it were (TeI 276; TI 300), then it does violence to the Other. The task of philosophical criticism is to help reduce this violence, which to the extent that it cannot be eliminated completely, gives rise to the need for charity after justice. Without charity, justice is impossible, and without justice charity becomes irresponsible and unethical, reminding us that


notions like goodness are not simple, and that they call up and encapsulate notions that seem opposed to them. (DL 200; DF 140)




[1] Larry J. Eshelman, "Might Versus Right," Journal of Libertarian Studies 12:1 (1996): 29-50.

[2] Excerpted from The New Catholic Encyclopedia (New York: McGraw [1967-89]), 593.

[3] Aylmer Maude, The Life of Tolstoy 2 vols. (London: Oxford, 1929-30), II, 39.

[4] Leo Tolstoy, "The Requirements of Love," Divine and Human and Other Stories, trans. Peter Sekirin (Michigen: Zondervan Publishing House, 2000), 200. See also Leo Tolstoy, The Law of Love and the Law of Violence, trans. Mary Koutouzow Tolstoy (London: Holt, Rinehart and Winston, 1970).

[5] Interview with François Poirié in Emmanuel Levinas: Qui êtes-vous?, ed. François Poirié (Lyon: Editions La Manufacture, 1987), 69. This interview is included in the collection Is it Righteous to Be? Interviews with Emmanuel Levinas, ed. Jill Robbins (Stanford: Stanford University Press, 2001), 28. Henceforth QV and IR. See also Marie-Anne Lescourret, Emmanuel Levinas (Paris: Flammarion, 1994), 19-50.

[6] Emmanuel Levinas, Ethique et Infini (Paris: Fayard, 1982), 19-20. Ethics and Infinity, trans. Richard Cohen (Pittsburgh: Duquesne University Press, 1985), 24-5.

[7] It should noted that Levinas misquotes Isaiah (57:19) here. The correct citation is: "Peace, peace to the one far-off and the neighbor." The rhetorical device to which Levinas is referring is to place "peace to the one far-off" before "peace to the neighbor," as though the third party were placed between me and the Other. This is important, as Levinas makes clear in an interview in 1985 ("Entretien avec Emmanuel Levinas," by F. Armengaud, in Revue de Métaphysique et de Morale 90 [1985], 307), where the biblical quote is given correctly on three occasions (300; 302; 307).

[8] Emmanuel Levinas, Autrement qu'être ou au-delà de l'essence (The Hague: Martinus Nijhoff, 1974), 200. Otherwise than Being or Beyond Essence, trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1981), 157. Henceforth AE and OB respectively.

[9] Emmanuel Levinas, Difficile liberté (Paris: Albin Michel, 1976), 21. Difficult Freedom, trans. Seán Hand (Baltimore: Johns Hopkins University Press, 1990), 8. Henceforth DL and DF respectively.

[10] Emmanuel Levinas, Totalité et infini: Essai sur l'exteriorité. The Hague: Martinus Nijhoff, 1961), 56. Totality and Infinity: An Essay on Exteriority, trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1969), 84.Henceforth TeI and TI.

[11] John Locke, Two Treatises of Government, ed. Peter Laslett, Ed. (New York: Cambridge, University Press, 1988), II, section 11.

[12] Emmanuel Levinas, "A quoi pensent les philosophes?" Autrement 102 (1988): 53-60 (59 personal translation). Henceforth AP. However, see Levinas's response to an interview that took place in 1983 ("Philosophie, justice et amour: entretien avec Emmanuel Levinas," ed. R. Fornet and A. Gomez, in Esprit 8-9 [1983]. Asked whether the executioner [bourreau] has a face, he replied: "The executioner is one who threatens the neighbor and calls upon violence: in this sense, he no longer has a face" (9; IR 167). Nowhere else, to my knowledge, does Levinas make the claim that the Other, be it an executioner, does not have a face. It may be that when Levinas says the executioner "no longer has a face," he means that when the verdict of justice is passed down the face is temporarily eclipsed—not that it altogether disappears. I discuss the ramifications of such an eclipse later in my essay.

[13] See Levinas's note in "La Souffrance inutile," in Les Cahiers de la nuit surveillé. Numéro 3: Emmanuel Levinas, ed. J. Rolland (Lagress: Editions Verdier, 1984), 329-38 (332n 4). "Useless Suffering," trans. Richard Cohen, in The Provocation of Levinas, ed. Robert Bernasconi and David Wood (London: Routledge, 1988), 156-67 (166n 5). For the character Alyosha's remark about suffering, see Fyodor Dostoyevsky, The Brothers Karamazov, trans. D. Magarshack (London: Penguin Books, 1958), 283.

[14] Emmanuel Levinas, Du sacré au saint (Paris: Les Editions de Minuit, 1977), Nine Talmudic Readings, trans. Annette Aronowicz (Bloomington: Indiana University Press, 1994), 109.38. Henceforth DS and NT respectively.

[15] This qualification, omitted in Lingis's translation, is important. Having spoken of the "history of the West" (AE 222; OB 176) and the "violences of nationalism" (AE 223; OB 176), Levinas is here addressing those readers who are not seduced by such violence and for whom such violence is a problem. The address therefore seeks to remain within the framework of a descriptive discourse without entering upon a prescriptive one.

[16] This is quite different from Jefferson's famous statement that he trembled for his nation when he reflected that God is just. What Jefferson feared in the impeding war against slavery was "a revolution of the wheel of fortune, an exchange of situation" (Note on the State of Virginia, in The Portable Thomas Jefferson, ed. Merrill D. Peterson [New York: Viking Press, 1975], 215).It was not his conscience that he feared but punishment. For Levinas, by contrast, it is not anguish for oneself that should make one hesitate before engaging in violent struggle and revolution, but anguish for the Other, which translates into fear of not doing the right thing.

[17] Lao-Tzu, recall, said something similar two-and-a-half millennia earlier: "Weapons are tools of violence not of the sage. He uses them only when there is no choice, and then calmly and with tact, for he finds no beauty in them" (Lao-Tzu, Tao Te Ching, Hex. 31).

[18] Notably, in the Critique of Practical Reason, Kant asserts:


In every punishment as such there must first be justice, and this constitutes the essence of the concept. With it benevolence may of course be associated, but the person has not the least reason to count on it. (Critique of Practical Reason, trans. Lewis White Beck [New York: Macmillan, 1993], 39)


In the preceding section we argued that violence against the Other is justified if, and only if, it is "first" attached the concept of justice definitive of the relation with the third party. In this section we wish to examine how benevolence is to reattach itself to justice, specifically just violence, notwithstanding that the Other "has not the least reason to count on it." For Levinas there can be no "reason" to expect benevolence, not because, as Kant himself would argue, "the other has no right to demand" (The Metaphysics of Morals, trans. Mary Gregor [Cambridge: Cambridge University Press, 1993], 192) that duties of love (imperfect duties) be fulfilled in any particular case. Levinas would deny that benevolence is a rational duty. But because reason itself is said to belong to the order of justice and thus presupposes personal attention to the Other, of which "benevolence" (QV 103) may be considered a modality.

[19] Quoted by Levinas (IR 69; QV 119).

[20] "The Paradox of Morality" (interview with Tamra Wright, Alison Ainley, and Peter Hughes), in The Provocation of Levinas, 168-80, 178. Hence forth PM.

[21] See also PM 175 and AP 58.

[22] Excerpted from Eshelman, 32.