POLITICAL LIBERALISM,BASIC LIBERTIES,AND LEGAL PATERNALISM

This essay argues that neutral paternalism (NP) is problematic for antiperfectionist liberal theories. Section 2 raises textual evidence that Rawlsian liberalism does not oppose and may even support NP. In section 3, I cast doubt on whether NP should have a place in political liberalism by defending a partially comprehensive conception of the good I call “moral capacity at each moment,” or MCEM, that is inconsistent with NP. I then explain why MCEM is a reasonable conception on Rawls's account of reasonableness. In section 4, I handle concerns that showing NP fails the test of Rawlsian public justification is a nonstarter since NP does not threaten any of our basic liberties. I sketch an argument that, if this is so, the burden is on political liberalism to defend its particular account of basic liberties, since MCEM is reasonable on Rawlsian grounds. More precisely, MCEM is a conception that challenges the way Rawls characterizes basic liberties; that is, his list of basic liberties should be more inclusive by political liberalism's own structural commitments, including Rawls's “liberal principle of legitimacy.” On this revised account, political liberalism can mount a strong opposition to hard legal paternalism.     

Putting Liberty in its Place: Rawlsian Liberalism without the Liberalism

To be a liberal is, among other things, to grant basic liberties some degree of priority over other aspects of justice. But why do basic liberties warrant this special treatment? For Rawls, the answer has to do with the allegedly special connection between these freedoms and the ‘two moral powers’ of reasonableness and rationality. Basic freedoms are said to be preconditions for the development and exercise of these powers and are held to warrant priority over other justice‐relevant values for that reason. In the first half of the article I mount an internal critique of this Rawlsian line, arguing that it is flawed in two main ways. First, it overestimates the contribution of basic freedom to moral personality. Second, it underestimates the contribution of non‐liberty resources (such as basic material necessities, but also opportunities for culture, education, leisure, and social contribution) to moral personality. In the second half of the article I repair these flaws (thus putting liberty in its proper place, if you like). The result is a new, intriguingly radical version of justice as fairness, one with surprising—yet plausible—implications for economic and gender justice.     

The Irrationality of Choosing Egoism—A Reply to Eshelman

Despite the vast literature on Rawls's work, few have discussed his arguments for the value of democracy. When his arguments have been discussed, they have received staunch criticism. Some critics have charged that Rawls's arguments are not deeply democratic. Others have gone further, claiming that Rawls's arguments denigrate democracy. These criticisms are unsurprising, since Rawls's arguments, as arguments that the principle of equal basic liberty needs to include democratic liberties, are incomplete. In contrast to his trenchant remarks about core civil liberties, Rawls does not say much about the inclusion of political liberties of a democratic sort – such as the right to vote – among the basic liberties.

In this paper, I complete some of Rawls's arguments and show that he has grounds for including political liberties, particularly those of a democratic nature, in the principle of equal basic liberty. In doing so, I make some beginning steps toward illustrating the genuinely democratic nature of Rawls's arguments. Rawls believes that a few different arguments can be given for democratic institutions and that these arguments work together to support the value of democracy. In this paper, I focus on Rawls's arguments relating to self-respect. I focus on this set of arguments because they are among the strongest of Rawls's arguments for equal political liberty and its fair value.     

Is there a Rawlsian Argument for Animal Rights?

Mark Rowlands defends a Rawlsian argument for animal rights, according to which animals have rights because we would assign them rights when deciding on the principles of morality from behind a veil of ignorance. Rowlands’s argument depends on a non-standard interpretation of the veil of ignorance, according to which we cannot know whether we are human or non-human on the other side of the veil. Rowlands claims that his interpretation of the veil is more consistent with a core commitment of Rawlsian justice—the intuitive equality principle—than either Rawls or his critics realize. Here I argue that Rawls is not committed to the intuitive equality principle, as Rowlands articulates it, and hence Rowlands’s argument is in fact only superficially Rawlsian. Furthermore, Rowlands’s intuitive equality principle is dubious on its own terms, and thus a poor principle on which to base a case for animal rights.     

The moral limits of Feinberg's liberalism

This essay explores Joel Feinberg's conception of liberalism and the moral limits of the criminal law. Feinberg identifies liberty with the absence of law. He defends a strong liberal presumption against law, except where it is necessary to prevent wrongful harm or offense to others. Drawing on Rawlsian, Marxian, and feminist standpoints, I argue that there are injuries to individual liberty rooted not in law, but in civil society. Against Feinberg, I defend a richer account of liberalism and liberty, linking them to human dignity, and a more positive role for law. Feinberg justifies liberty as an instrumental welfare‐interest, valuable in virtue of the way it serves the individual's ulterior goals. Drawing on the example of racism and civil rights, I argue that the value of equal liberty stems from its social role in constituting persons’ sense of their own worth and dignity. Against Feinberg, I claim that liberty's value is grounded in a shared historical ideal of personhood, not in the individual's goals or desires. Feinberg also links liberalism with an extreme anti‐paternalist position, on which individuals should be at liberty to alienate their very own right of personal autonomy. Drawing on the examples of slavery and drug addiction, I argue against this liberty, and the conception of liberalism and paternalism in Feinberg which leads to it. A liberalism founded upon an ideal of human dignity allows, even requires, a use of law to prevent persons from destroying the very conditions of their own autonomy and dignity.     

The Fair Value of Economic Liberty

In Free Market Fairness, John Tomasi tries to show that ‘thick’ economic liberties, including the right to own productive property, are basic liberties. According to Tomasi, the policy-level consequences of protecting economic liberty as basic are essentially libertarian in character. I argue that if economic liberties are basic, just societies must guarantee their fair value to all citizens. And in order to secure the fair value of economic liberty, states must guarantee that citizens of roughly similar dispositions and talents are roughly equally able to use their economic liberties to develop and pursue a conception of the good. This, I will argue, is a very demanding standard that requires aggressive taxation and redistribution.     

All Liberty is Basic

Recent arguments for the basic status of economic liberty can be deployed to show that all liberty is basic. The argument for the basic status of all liberty is as follows. First, John Tomasi’s defense of basic economic liberties is successful. Economic freedom can be further defended against powerful high liberal objections, which libertarians including Tomasi have so far overlooked. Yet arguments for basic economic freedom raise a puzzle about the distinction between basic and non-basic liberties. The same reasons that economic liberties and the traditionally defined list of basic liberties are basic can also be given for all other liberties. Therefore, high liberals and Rawlsian libertarians ought to accept almost all other liberties as basic, even liberties that may strike us as trivial, silly, or unimportant. This claim has revisionary implications for high liberalism. Namely, liberals should endorse strong institutional protections for almost all liberties, even at the expense of other social values.     

The Implicit Argument for the Basic Liberties

Most criticism and exposition of John Rawls’s political theory has focused on his account of distributive justice rather than on his support for liberalism. Because of this, much of his argument for protecting the basic liberties remains under explained. Specifically, Rawls claims that representative citizens would agree to guarantee those social conditions necessary for the exercise and development of the two moral powers, but he does not adequately explain why protecting the basic liberties would guarantee these social conditions. This gap in his argument leads to two problems. First, the Rawlsian argument for the priority of liberty would fail if the gap could not be filled. His argument would still support the protection of individual freedoms, but these freedoms would be treated like other primary goods and regulated by the difference principle. Second, without a full argument, there is not sufficient reason to favor Rawls’s left-liberal conception of the basic liberties over a more right-leaning conception that would prioritize the protection of free-market rights. To address these two problems, this paper fills in the gap in order to better explain Rawls’s full argument for egalitarian liberalism.     

INFINITE REGRESS ARGUMENTS

Abstract

Gerald Cohen's critique of John Rawls's theory of justice is that it is concerned only with the justice of social institutions, and must thus arbitrarily draw a line between those inequalities excluded and those allowed by the basic structure. Cohen claims that a proper concern with the interests of the least advantaged would rule out ‘incentives’ for ‘talented’ individuals. I argue that Rawls's assumption that the subject of justice is the basic structure of society does not arbitrarily restrict the concerns of political justice, as Cohen claims. Further, I argue that it does not allow ‘deep’ inequalities within a just basic structure. When properly understood, Rawls's theory of justice is strongly egalitarian, taken as a theory of fairness in the way the burdens and benefits of social cooperation are distributed, even if it is not as egalitarian as Cohen wishes.     

Epistemic Norms and Democracy: a Response to Talisse

John Rawls argued that democracy must be justifiable to all citizens; otherwise, a democratic society is oppressive to some. In A Pragmatist Philosophy of Democracy ( 2007 ), Robert B. Talisse attempts to meet the Rawlsian challenge by drawing from Charles S. Peirce's pragmatism. This article first briefly canvasses the argument of Talisse's book and then criticizes its key premise concerning (normative) reasons for belief by offering a competing reading of Peirce's “The Fixation of Belief” ( 1877 ). It then proceeds to argue that Talisse's argument faces a dilemma: his proposal of epistemic perfectionism either is substantive and can be reasonably disagreed about or is minimal but insufficient to ground a democratic society. Consequently, it suggests that the Rawlsian challenge can only be solved by abandoning Rawls's own notion of reasonableness, and that an interesting alternative notion of reasons can be derived from Peirce's “Fixation.”     

Principles or Imagination? Two Approaches to Global Justice

What does it mean to introduce the notion of imagination in the discussion about global justice? What is gained by studying the role of imagination in thinking about global justice? Does a focus on imagination imply that we must replace existing influential principle-centred approaches such as that of John Rawls and his critics?

We can distinguish between two approaches to global justice. One approach is Rawlsian and Kantian in inspiration. Discussions within this tradition typically focus on the question whether Rawls's theory of justice (1971), designed for the national level, can or should be applied to the global level. Can and should Rawls's Difference Principle be globalized, as Thomas Pogge argues? Is this proposal superior to Rawls's Law of Peoples (1999)? Another approach to global justice has been developed by Martha Nussbaum in Cultivating Humanity (1997), Poetic Justice (1995), and other work. I will construct her view and critically examine it by looking at her arguments about the relation between empathy, literature, and global justice.

At first sight, these two approaches seem to be opposed. The former puts an emphasis on principles, universal reason, and the moral aspects of institutions and their policies, whereas the latter is rather concerned with the relation between imagination and justice, with the particular, and with the individual moral development. But is this necessarily so? I will show that both approaches could benefit from each other's insights to strengthen their own position. Moreover, I will argue for middle way between, or an integration of the two approaches that combines principles and imagination. In this way, we can move towards a more comprehensive account of global justice.     

Downward mobility and Rawlsian justice

Technological and societal changes have made downward social and economic mobility a pressing issue in real-world politics. This article argues that a Rawlsian society would not provide any special protection against downward mobility, and would act rightly in declining to provide such protection. Special treatment for the downwardly mobile can be grounded neither in Rawls’s core principles—the basic liberties, fair equality of opportunity, and the difference principle—nor in other aspects of Rawls’s theory (the concept of legitimate expectations, the idea of a life plan, the distinction between allocative and distributive justice, or the distinction between ideal and nonideal theory). Instead, a Rawlsian society is willing to sacrifice particular individuals’ ambitions and plans for the achievement of justice, and offers those who lose out from justified change no special solicitude over and above the general solicitude extended to all. Rather than guaranteeing the maintenance of any particular individual or group’s economic position, it provides all of its members—the upwardly mobile, the downwardly mobile, and the immobile—a form of security that is at once more generous and more limited: that they will receive the liberties, opportunities, and resources promised by the principles of justice.     

Rawlsian Justice and the Social Determinants of Health

In this article, we suggest that the evidence regarding the social determinants of health calls for a deep re‐thinking of our understanding of distributive justice. Focusing on John Rawls's theory of distributive justice in particular, we argue that a full reckoning with the social determinants of health requires a re‐working of Rawls's principles of justice. We argue first that the social bases of health – a Rawlsian conception of the social determinants of health – should be considered a social primary good. We argue second that including the social bases of health as a social primary good would lead the parties to the original position to choose an additional principle of justice and assign it lexical priority over Rawls's second principle. According to this principle, inequalities in people's share of the social bases of health are to be arranged so as to improve the health status of those least advantaged on the social health gradient.     

How to achieve global justice

In this paper, I argue that even a libertarian ideal of liberty, which initially seems opposed to welfare rights, can be seen to require a right to a basic needs minimum that extends to distant peoples and future generations and is conditional upon the poor doing whatever they reasonably can to meet their own basic needs, including bringing their population growth under control. Given that, as I have argued elsewhere, welfare liberal, socialist, communitarian and feminist political ideals can be easily seen to support this same right to a basic needs minimum, showing how a libertarian ideal of liberty supports the right should go a long way toward solving the problem of what all people, whether near or distant, present or future, deserve, which is the basic problem of global justice.     

Is Health (Really) Special? Health Policy between Rawlsian and Luck Egalitarian Justice

In recent work, Norman Daniels extends the application of Rawls's principle of ‘fair equality of opportunity’ from health care to health proper. Crucial to that account is the view that health care, and now also health, is special. Daniels also claims that a rival theory of distributive justice, namely luck egalitarianism (or ‘equal opportunity for welfare’), cannot provide an adequate account of justice in health and health care. He argues that the application of that theory to health policy would result in an account that is, in a sense, too narrow, for it denies treatment to imprudent patients (e.g. lung cancer patients who smoked). In a different sense, Daniels argues, luck egalitarian health policy would be too wide: it arguably tells us to treat individuals for such brute‐luck conditions as shyness, stupidity, ugliness, and having the ‘wrong’ skin colour. I seek to advance three claims in response to Daniels's revised theory, and in defence of a luck egalitarian view of health policy. First, I question Daniels's assertion regarding the specialness of health. While he is right to abandon his insistence on the specialness of health care, it is doubtful that health proper can be depicted as special. Second, I try and meet Daniels's objections to luck egalitarianism. Luck egalitarian health policy escapes being too narrow for it does not in fact require denying basic care to imprudent patients. As for it being allegedly too wide, I try to show that it is not, after all, counterintuitive to rid individuals of unfortunate and disadvantageous biological traits (say, a disadvantageous skin colour). And third, I question whether Daniels's own Rawlsian account is in fact wide enough. I argue that fair equality of opportunity fails to justify some standard medical procedures that many health systems do already practice.     

The Place of Self‐Respect in a Theory of Justice

This essay provides a critical examination of Rawls' (and Rawlsians') conception of self‐respect, the social bases of self‐respect, and the normative justification of equality in the social bases of self‐respect. I defend a rival account of these notions and the normative ideals at stake in political liberalism and a theory of social justice.

I make the following arguments: (1) I argue that it is unreasonable to take self‐respect to be a primary social good, as Rawls and his interpreters characterize it; (2) secondly, drawing on a distinction made by Darwall, I argue that recognition respect provides a far more suitable notion of respect for a theory of justice than Rawls' notion of appraisal respect; (3) thirdly, I argue that Rawls' treatment of self‐respect and the social bases of self‐respect as empirical conceptions should be rejected in favor of normative notions of a reasonable or justified self‐respect and equality in reasonable social bases of self‐respect; (4) I argue that Rawls' notions of political liberalism and public reason provide a way of grounding a notion of the reasonable social bases of self‐respect in political ideals of the person implicit in modern economic institutions, and family relations, ignored by Rawlsians—but as central to reasonable social bases of self‐respect and justice, as Rawlsians' ideal of persons as free and equal citizens.     

Testimonial Injustice and a Case for Mindful Epistemology

In her 2007 book Epistemic Injustice Miranda Fricker identifies testimonial injustice as a case where a hearer assigns lower credibility to a speaker due to “identity prejudice.” Fricker considers testimonial injustice as a form of epistemic injustice since it wrongs the speaker “in her capacity as a knower.” Fricker recommends developing the virtue of “testimonial justice” to address testimonial injustice. She takes this virtue to involve training in a “distinctly reflexive critical social awareness.” The main goal of this article is to argue that Fricker's proposed training falls short of the target and that a cultivation of the capacity of being present—the ability to be mindful—would be necessary to develop the critical social awareness that Fricker requires. I want to explore the impact of compassion and open-mindedness—virtues cultivated in mindfulness training—on testimonial justice specifically and virtue epistemology generally. In attempting to develop an epistemic account informed by mindfulness—a mindful epistemology—my primary goal is to bring Buddhist insights on how to anchor the mind by training it to be fully present and attentive into the focus of mainstream Western philosophy. More specifically, I argue that doing so allows us to appreciate the crucial role that a prediscursive level of cultivation plays in the development of testimonial justice.     

THE LANGUAGE OF RIGHTS AND CONCEPTUAL HISTORY

The historical problem about the origins of the language of rights derives its importance from the conceptual problem: of “two fundamentally different ways of thinking about justice,” which is basic? Is justice unitary or plural? This in turn opens up a problem about the moral status of human nature. A narrative of the origins of “rights” is an account of how and when a plural concept of justice comes to the fore, and will be based on the occurrence of definite speech‐forms—the occurrence of the plural noun in the sense of “legal properties.” The history of this development is currently held to begin with the twelfth‐century canonists. Later significant thresholds may be found in the fourteenth, sixteenth, and eighteenth centuries. Wolterstorff's attempt to find the implicit recognition of rights in the Scriptures depends very heavily on what he takes to be implied rather than on what is stated, and at best can establish a pre‐history of rights‐language.     

GLOBAL JUSTICE AFTER THE FALL Christian Realism and the "Law of Peoples"

In The Law of Peoples John Rawls casts his proposals as an argument against what he calls “political realism.” Here, I contend that a certain version of “Christian political realism” survives Rawls's polemic against political realism sans phrase and that Rawls overstates his case against political realism writ large. Specifically, I argue that Rawls's dismissal of “empirical political realism” is underdetermined by the evidence he marshals in support of the dismissal and that his rejection of “normative political realism” is in tension with his own normative concessions to political reality as expressed in The Law of Peoples. That is, I contend that Rawls, himself, needs some form of political realism to render persuasive the full range of normative claims constituting the argument of that work.     

The <Emphasis Type="Italic">Struggle Between Liberties and Authorities</Emphasis> in the Information Age

The “struggle between liberties and authorities”, as described by Mill, refers to the tension between individual rights and the rules restricting them that are imposed by public authorities exerting their power over civil society. In this paper I argue that contemporary information societies are experiencing a new form of such a struggle, which now involves liberties and authorities in the cyber-sphere and, more specifically, refers to the tension between cyber-security measures and individual liberties. Ethicists, political philosophers and political scientists have long debated how to strike an ethically sound balance between security measures and individual rights. I argue that such a balance can only be reached once individual rights are clearly defined, and that such a definition cannot prescind from an analysis of individual well-being in the information age. Hence, I propose an analysis of individual well-being which rests on the capability approach, and I then identify a set of rights that individuals should claim for themselves. Finally, I consider a criterion for balancing the proposed set of individual rights with cyber-security measures in the information age.