My twitter thread on this debate and the idea of justice in general:

This page is an except from the excellent debate between Michel Foucault and Noam Chompsky “On human nature”. I think this particular bit about justice is especially interesting.

Foucault: So it is in the name of a purer justice that you criticize the functioning of justice? It is important for me to know about this. In France there is currently a debate about this problem of justice and that of popular judicial institution. A certain number of people, including Sartre, believe that in order to make a critique of the current penal system or of police practices, we have to create a kind of tribunal which – in the name of a superior, ideal and human justice – will condemn the practices of the French judges or policemen. Moreover, there is another group of people, myself included, who say this shouldn’t be done because when they refer to an ideal justice – which the tribunal is supposed to apply – they refer to a certain number of judicial ideas which were formed in our time by a certain number of individuals who are themselves, directly or indirectly, a product of their societies. We have to attack the practices of justice. We have to attack the police and their practices: but in terms of war and not in terms of justice.

Chomsky: Surely you believe that your role in the war is a just role; that you are fighting a just war, to bring in a concept from another domain. And that, I think, is important. If you thought that you were fighting an unjust war, you couldn’t follow that line of reasoning. I would like to slightly reformulate what you said. It doesn’t seem to me that the difference is between legality and ideal justice; it’s rather between legality and better justice. Now this better system may have its defects, it certainly will. But if comparing the better system with the existing system, without being confused into thinking that our better system is the ideal system, we can then argue, I think, as follows: the concept of legality and the concept of justice are not identical; they’re not entirely distinct either. Insofar as legality incorporates justice in this sense of better justice, referring to a better society, then we should follow and obey the law, and force the state to obey the law and force the great corporations to obey the law, and force the police to obey the law, if we have the power to do so. If in those areas where the legal system happens to represent not better justice, but rather the techniques of oppression that have been codified in a particular autocratic system, well, then a reasonable human being should disregard and oppose them, at least in principle; he may not, for some reason, do it in fact.

Foucault: I would simply like to reply to your first sentence, when you said that if you didn’t consider the war you wage against the police to be just, you wouldn’t wage it. I would like to reply to you in terms of Spinoza and tell you that the proletariat doesn’t wage war against the ruling class because it considers such a war to be just. The proletariat wages war against the ruling class because it wants for the first time in history, to take power. And because of its will to overthrow power it considers such a war to be just.

Chompsky: Yeah, I don’t agree?

Foucault: One wages war to win, not because it is just.

Chompsky: I personally don’t agree with that. For example, if I could convince myself that attainment of power by the proletariat would lead to a terroristic police state, in which freedom and dignity and decent human relations would be destroyed, then I wouldn’t want the proletariat to take power. In fact the only reason for wanting any such thing, I believe, is because one thinks, rightly or wrongly, that some fundamental human values will be achieved by that transfer of power.

Foucault: When the proletariat takes power, it may be quite possible that the proletariat will exert a violent, dictatorial and even bloody power towards the classes over which it has just triumphed. I can’t see what claim anyone could make against this. But if you ask me what would happen if the proletariat exerted bloody, tyrannical and unjust power towards itself, then I would say that this could only occur if the proletariat hadn’t really taken power, but that a class outside the proletariat, or a group of people inside the proletariat, or a bureaucracy or petit bourgeois elements, had taken power.

Chompsky: Well, I’m not at all satisfied with that theory of revolution for a lot of reasons, historical and others. But even if one were to accept it for the sake of argument, still that theory is maintaining that it is proper for the proletariat to take power and exercise it in a violent and bloody and unjust fashion, because it is claimed, in my opinion falsely, that that will lead to a more just society, in which the state will wither away, in which the proletariat will be a universal class and so on and so forth. If it weren’t for that further justification, the concept of the dictatorship of the proletariat, violent and bloody, will certainly be unjust. I for example, I am not a committed pacifist. I would not hold that it is under all imaginable circumstances wrong to use violence, even though use of violence is in some sense unjust. I believe that one has to estimate relative injustices. But the use of violence and the creation of some degree of injustice can only itself be justified on the basis of the claim and the assessment – which always ought to be undertaken very, very seriously and with a good deal of skepticism – that this violence is being exercised because a more just result is going to be achieved. If it does not have that grounding, it is really totally immoral, in my opinion.

As far as the aim of the proletariat in leading a class struggle is concerned, I don’t think it would be sufficient to say that it is in itself a greater justice. What the proletariat will achieve by expelling the ruling class and by taking power is precisely the suppression of class power in general. But that’s the further justification. That is the justification, one doesn’t speak in terms of justice but in terms of power. It is in terms of justice; it’s because the end that will be achieved is claimed as a just end. No Leninist or whatever you like would dare to say “We, the proletariat, have the right to take power, and then throw everyone else into crematoria.” If that were the consequence of the proletariat taking power, of course it would not be appropriate. The idea is – and for the reasons I mentioned I’m skeptical about it - that a period of violent dictatorship, or perhaps violent and bloody dictatorship, is justified because it means the submergence and termination of class oppression, a proper end to achieve in human life.

Foucault: But it seems to me that, in any case, the notion of justice itself functions within a society of classes as a claim and as a justification for it made by the oppressed class.

Chompsky: I don’t agree with that.

Foucault: And in a classless society, I am not sure that we would still use this notion of justice.

Chompsky: Well, here I really disagree. I think there is some sort of an absolute basis – if you press me too hard I’ll be in trouble because I can’t sketch it out – but some sort absolute basis, ultimately residing in fundamental human qualities in terms of which a “real” notion of justice is grounded. I think it’s too hasty to characterize our existing systems of justice as merely systems of class oppression; I don’t think that they are that. I think that they embody systems of class oppression and they embody elements of other kinds of oppression, but they also embody a kind of a groping towards the true humanly, valuable concepts of justice and decency and love and kindness and sympathy and so on, which I think are real.

Foucault: Well, do I have time to answer?

Moderator: Yes

Foucault: How much? Because…

Moderator: Two minutes?

Foucault: But I would say that that is unjust?

Chompsky: Absolutely.

Foucault: No, but I don’t want to answer in so little time. I will simply say that I can’t help but to think that the concepts of human nature, of kindness, of justice, of human essence and its actualization… All of these are notions and concepts that have been created within our civilization, our knowledge system and our form of philosophy, and that as a result they form part of our class system; and one can’t, however regrettable it may be, put forward these concepts to describe or justify a fight which should – and shall in principle - overthrow the very fundaments of our society. This is an extrapolation for which I can’t find the historical justification.