UNMIK/PR/803
Delivered on 2 August 2002
You have talked a great deal about law in this course. I would like to speak today about that elusive concept that everyone agrees is inextricably linked to law, even if it is difficult to define: justice.
While much of this course has focused on law among states, I will discuss conceptions of justice that differ among political cultures. Specifically, I will focus on what Canadian philosopher Will Kymlicka calls “ethno-cultural justice”: how to balance majority and minority rights within the broader context of interethnic relations.
Like light, which we now know possesses both wave-like and particle-like properties, justice has many dimensions, some of which appear contradictory.
On the one hand, justice evokes a sense of fixed and absolute principles. On the other hand, the practice of justice is a continual balancing act.
Justice in its concrete form, as opposed to its idealized form, is an alloy of two competing principles: legitimacy and coercion. In other words, justice in the abstract sense and the force of the state required to ensure its application.
As the French philosopher Blaise Pascal succinctly observed:
“Justice without force is impotent; force without justice is tyranny. Justice without force is a myth because there are always bad men; force without justice stands convicted of itself.”
This is not merely an elegant philosophical formula. It illustrates how both elements are essential.
For centuries, this idea has been symbolized at courthouses around the world. Justice is depicted as a blindfolded figure holding a set of scales in one hand and a sword in the other.
It is worth noting that this figure is usually depicted as a woman, drawing attention to the historical absence of women within courts of law actually administering justice.
But let us return to our main subject. We can discuss gender justice another day.
Why do people obey laws?
Because they believe that the law embodies both justice and force.
The effectiveness of force depends on two factors:
- The belief that if a person breaks the law, there is a good chance of being caught.
- The belief that if an offender is caught, there will be punishment.
For this system of justice to have legitimacy, the law must be applied consistently and must be perceived as being applied consistently.
It also requires something equally important, though more abstract: the belief that the law is legitimate and that adherence to it contributes to the long-term well-being of society.
As Jean-Jacques Rousseau stated:
“The strong are still never sufficiently strong to ensure them continual mastership, unless they find the means of transforming force into right, and obedience into duty.”
Nowhere is this combination of attitudes more difficult to achieve than in societies divided along ethnic or religious lines.
Living in Southeastern Europe, we are all acutely aware of what it means for a society to be divided along such lines, and of the strain this places on institutions trying to gain acceptance as serving the common good.
Indeed, the very concept of the “general good” is often not accepted by all.
Transforming force into right and obedience into duty is particularly difficult in divided societies because a shared sense of right and duty presupposes that all people subject to the law see themselves as members of a common community.
Some sense of shared community is essential to establishing the rule of law.
The disintegration of what was widely known as Yugoslavia twenty years ago illustrates what can happen when the idea of the general good disappears from a society.
We do not need to revisit that history in detail. The essence of that disintegration can be traced to irresponsible political leaders telling their people that no justice was owed to different ethnic or religious communities.
We all know how costly the consequences have been.
In many parts of the former Yugoslavia, the international community has been called upon to repair the damage.
Here in Kosovo, we can see what the international community and Kosovars have achieved in repairing physical damage to homes.
We can also see that institutions are equally important.
Justice, and the administration of justice, are among the most important of those institutions.
Our greatest challenge is creating conditions that allow all members of society to live in security and dignity, regardless of ethnicity.
If we fail to achieve that, then the resources spent repairing buildings will have been wasted because those buildings may simply be destroyed again.
Kosovo’s government will soon consider a resolution on the rights of communities and the conditions necessary for the return of displaced people.
This resolution focuses primarily on freedom of movement and creating conditions conducive to return.
Important as they are, returns and freedom of movement are only the first steps toward ensuring interethnic justice.
For returns to be sustainable, members of minority communities must have access to public services and integration into public institutions.
At the same time, they must be able to exercise their rights to their own languages and cultures.
Balancing the needs for commonality and particularity is clearly not an easy task.
I would like to briefly address one approach that has proven successful in many societies: the devolution of power over day-to-day issues to sub-units of municipalities.
We seek to bring this approach to Kosovo.
Through devolution, we intend to give minorities a stake in Kosovo’s future, bring government closer to the people, and do so without undermining the ability of central and municipal authorities to develop and implement Kosovo-wide policies that serve the common good.
This will provide people with greater control over issues that matter most to them, including:
- Decisions about resource allocation.
- Equal access to benefits and services regardless of ethnicity.
- Increased participation in society.
The challenge is finding a balance that maximizes the vitality of local government without weakening central institutions.
For operational and practical reasons, some competencies, such as economic development, emergency services and returns, must remain at the municipal level.
Other competencies can be devolved to municipal sub-units. These include:
- Educational support services.
- Primary health care.
- Social services.
- Social housing.
- Building permits and licensing.
- Local development planning.
I want to stress a matter of great importance to both the international community and the people of Kosovo: no illegal parallel structures will be tolerated in Kosovo, and they will not be allowed to emerge under the guise of devolution.
For municipal sub-units to be recognized as legitimate and receive funding, their officials must actively participate in the structures of the municipality itself.
Devolution is a critical step in Kosovo’s transformation.
Nevertheless, even if it functions perfectly, the integration of central institutions remains essential.
I would also like to discuss another approach that contributes to balancing commonality and particularity.
Last month, Michael Steiner reached an important agreement with authorities in Belgrade to encourage qualified Kosovo Serbs to participate in and work within Kosovo’s judicial system.
At present, Kosovo’s courts employ more than 300 judges and prosecutors. Only four are Serbs.
From the outset, UNMIK has been committed to including Kosovo Serbs in the judiciary.
This is essential if the court system is to be viewed as legitimate by Kosovo Serbs.
We know that previous efforts failed because of opposition from Belgrade.
That obstacle has now been addressed.
However, when Belgrade’s acceptance of the supremacy of the Kosovo judicial system was announced, it generated considerable controversy.
One newspaper asked whether “Milosevic’s judges” would be returning.
The answer is simple and clear: no.
All candidates will be required to meet the same high professional and ethical standards as judges from other communities.
Many Kosovo Albanians were also concerned by rumors that the families of Kosovo Serb judges and prosecutors would automatically receive civil service jobs.
In fact, relatives of judges and prosecutors will compete for employment on the same basis as other Kosovo Serbs.
Their only advantage is that Kosovo Serbs remain significantly underrepresented in the civil service, and the civil service has a mandate to address that imbalance.
The process of making Kosovo a society that welcomes all of its ethnic communities will inevitably create friction and stimulate debate.
That debate can be constructive.
After all, ethno-cultural justice is not easy.
There is no perfect formula that can simply be applied.
Will Kymlicka, Professor of Philosophy at Queen’s University in Canada and at the Central European University in Budapest, has noted that while there is broad Western consensus on many aspects of democracy, such as the rule of law, elections and civil liberties, there is no comparable consensus on ethnic relations.
As Kymlicka observes:
“Minority rights are consistent with liberal pluralism if they meet two conditions: they protect the freedom of individuals within the group; and they promote relations of equality between groups.”
This principle offers a sound starting point.
But there is no silver bullet.
Creating a society that delivers justice to all its people, both as individuals and as members of ethnic groups, requires sustained effort, thoughtful adjustment, and, above all, goodwill.
The people of Kosovo must understand that this principle applies to them as well.
They must recognize that they will live in a multiethnic society and come to terms with that reality.
The international community came to Kosovo to rescue it from the disastrous consequences of an oppressive and anti-democratic regime that attempted to govern without regard for Kosovo’s multiethnic character.
The people of Kosovo joined with energy and commitment in repairing the physical damage caused by that failed policy.
They must now bring the same energy and determination to repairing Kosovo’s institutions so that a multiethnic and integrated Kosovo can prosper in the future.
