Burdened Societies and Transitional Justice

Following John Rawls, nonideal theory is typically divided into: (1) “partial-compliance theory” and (2) “transitional theory." The former is concerned with those circumstances in which individuals and political regimes do not fully comply with the requirements of justice, such as when people break the law or some individuals do not do their fair share within a distributive scheme. The latter is concerned with circumstances in which background institutions may be unjust or may not exist at all. This paper focuses on issues arising in transitional theory. In particular, I am concerned with what Rawls’ has called “burdened societies," that is, those societies that find themselves in unfavorable conditions, such that their historical, social or economic circumstances make it difficult to establish just institutions. The paper investigates exactly how such burdened societies should proceed towards a more just condition in an acceptable fashion. Rawls himself tells us very little, except to suggest that societies in this condition should look for policies and courses of action that are morally permissible, politically possible and likely to be effective. In this paper I first try to anticipate what a Rawlsian might say about the best way for burdened societies to handle transitional problems and so move towards the ideal of justice. Next, I construct a model of transitional justice for burdened societies. Ultimately, I argue for a model of transitional justice that makes use of a nonideal version of Rawls’ notion of the worst-off representative person.     

Justice and Civic Friendship： An Aristotelian Critique of Modern Citizenry

Modem moral and political theorists make a sharp separation between justice and civic friendship, arguing that justice deals with the fair terms of co-operation in the social sphere whereas civic friendship is about an individual＇s contingent affections in the political domain. In addition, they also argue that the principles of justice must determine the nature and function of civic friendship in modem liberal society. Even though the historical origin of the above view can be traced to the writings of Immanuel Kant （2007）, John Rawls provides us with its most cogent formulation in recent times. In his book A Theory of Justice （1971）, Rawls argues that the considerations of right are prior to the considerations of good; therefore the principles of justice must determine the limits of civic friendship. Against RaMs, I argue that justice and civic friendship are intrinsically connected and that they cannot be separated in experience. I draw upon Aristotle＇s theory of virtue to strengthen my arguments. Following Aristotle, I show that both justice and friendship are virtues and that all virtues hold together. The Aristotelian coherence of virtues, I argue, can be useful in redefining the obligations of justice and civic friendship in contemporary liberal democracies.     

Rawls, Animals and Justice: New Literature, Same Response

This article seeks to revisit the relationship between Rawls’s contractarianism and the moral status of animals, paying particular attention to the recent literature. Despite Rawls’s own reluctance to include animals as recipients of justice, and my own initial scepticism, a number of scholars have argued that his theory does provide resources that are useful for the animal advocate. The first type takes Rawls’s exclusion of animals from his theory of justice at face value but argues that animals can still be protected within a moral realm independently of justice, or indirectly through the motivations of human contractors. The second type adapts his theory in a way that enables animals to be included within a contractarian theory of justice. It is argued, though, that none of the responses offered is successful in providing a sphere of protection for animals from within Rawls’s contractarian theory. It is doubtful if Rawls’s intention was for animals to receive a significant degree of protection within a moral realm independently of justice, and equally doubtful if the contractors in the original position would be motivated to act on behalf of animals. In the case of the second, whilst Rawlsian resources can be utilised to justify the attempt to amend the veil of ignorance so as to include animals, these are not dependent on a contractural agreement. Similarly, placing emphasis on social-co-operation as a means of incorporating animals into a theory of justice is flawed, not least because, paradoxically, it works for domesticated animals whilst they are being exploited.     

Rawls and Rousseau: <Emphasis Type="Italic">Amour-Propre</Emphasis> and the Strains of Commitment

In this paper I try to illuminate the Rawlsian architectonic through an interpretation of what Rawls’ Lectures on the History of Political Philosophy say about Rousseau. I argue that Rawls’ emphasis there when discussing Rousseau on interpreting amour-propre so as to make it compatible with a life in at least some societies draws attention to, and helps explicate, an analogous feature of his own work, the strains of commitment broadly conceived. Both are centrally connected with protecting a sense of self which is vital for one’s own agency. This allows us to appreciate better than much of the literature presently does the requirement for Rawls that justice and the good are congruent, that a society of justice does not disfigure citizens’ ability to live out lives relatively unmarked by relations of domination. Some comments on G. A. Cohen’s critiques of Rawls are made.     

Cohen’s Rescue

G. A. Cohen’s Rescuing Justice and Equality proposes that both concepts need rescuing from the work of John Rawls. Especially, it is concerned with Rawls’ famous second principle of justice according to which social primary goods should be distributed equally unless an unequal distribution is to the benefit of the worst off. The question is why this would ever be necessary if all parties are just. Cohen and I agree that Rawls cannot really justify inequalities on the basis given. But he also thinks equality is the correct analysis of justice, though he provides no actual direct arguments for this. He does, however, provide a striking analytical argument claiming that fundamental principles of justice must be fact insensitive, and that Rawls’s view of justice violates this requirement. I argue that the requirement is itself misconceived and that principles of justice cannot possibly be fact insensitive in the sense developed by Cohen. Few philosophers share this view of Cohen’s—which I argue is due to several conceptual mistakes. With these ironed out, the contractarian view, broadly speaking, is seen to be plausible and powerful. Meanwhile Cohen appears to embrace intuitionism, a stance that cannot possibly be acceptable in social philosophy. In the end, Cohen is successful in arguing that Rawls cannot have what he wants, but neither is Cohen successful in claiming that justice is equality.     

Framing,Reciprocity and the Grounds of Egalitarian Justice

John Rawls famously claims that ‘justice is the first virtue of social institutions’. On one of its readings, this remark seems to suggest that social institutions are essential for obligations of justice to arise. The spirit of this interpretation has recently sparked a new debate about the grounds of justice. What are the conditions that generate principles of distributive justice? I am interested in a specific version of this question. What conditions generate egalitarian principles of distributive justice and give rise to equality as a demand of justice? My paper focuses on relationalist answers to this question. Advocates of relationalism assume that ‘principles of distributive justice have a relational basis’, in the sense that ‘practice mediated relations in which individuals stand condition the content, scope and justification of those principles’. To say that principles of justice are ‘based’ on and ‘conditioned’ by practice mediated relations is ambiguous. I will here be concerned with advocates of what I call the relationalist requirement, viz. positions which assume that ‘practice mediated relations’ constitute a necessary existence condition for principles of egalitarian distributive justice. Relationalists who endorse this view come in different varieties. My focus is on relationalists that view social and political institutions as the relevant ‘practice mediated relation’. The question at stake, then, is this: Are institutionally mediated relations a necessary condition for equality to arise as a demand of justice? Strong relationalists of the institutionalist cast, call them advocates of the institutionalist requirement, differ in important respects. They argue about what set of institutions is foundationally significant, and they disagree on why only that institutional relation gives rise to egalitarian obligations of justice. My paper engages two ways of arguing for the institutionalist requirement: Julius’s framing argument and Andrea Sangiovanni’s reciprocity argument. The issue at stake are the grounds of egalitarian justice and I will argue that the institutionalist requirement is mistaken. It is not the case that egalitarian obligations of distributive justice arise only between and solely in virtue of individuals sharing a common institution.     

Rawls and the Problem of Honour

In this paper, I consider the difficult relationship between Rawls, religion and the values that religious believers might consider important in order to lead the good life. Contrary to many of Rawls’ defenders, I argue that at least some of the values that religious citizens are likely to hold cannot be accounted for under Rawls’ theory or under his conception of the good life. I argue that the model of goods which Rawls takes to be part of a thin theory of the good is tied to his belief that under the Original Position justice can be derived from calculations of self-interest alone. To perform my critique, I consider the paradigmatic case of honour in so-called traditional societies. I argue that the way Rawls thematizes primary goods in A Theory of Justice, including concepts like esteem, cannot account for the way honour manifests itself inside traditional communities. I conclude the paper by considering how Rawls might be able to defend his theory against my objection, by considering the relationship between Rawls’ theory, and the rationalization and secularization of society.     

Hobbes's Account of Distributive Justice as Equity

This paper examines the rationale for and grounds and implications of Hobbes's redefinition of distributive justice as equity. I argue that this unprecedented reformulation served to ensure the justness of distributive laws. Hobbes acknowledges that the sovereign can distribute rights and goods iniquitously by failing to treat citizens as equals. However, he insists that improper allocations are not unjust, properly speaking – they do not `wrong' citizens. To support this claim, Hobbes puts forth the un-Aristotelian maxim that merit in distributive justice is due by grace alone. You deserve what the sovereign gives you: there is no desert prior to and independent of his allocation of rights. For Hobbes, distributive justice does not track but create merit. It follows that distributive laws cannot fail to give what is due (which would be unjust). This paper proceeds to analyze the nature of the limits equity sets to the apportionment of goods. I argue that these limits are moral and purely procedural: citizens cannot invoke equity to claim a fair share of the goods distributed. Thanks to Hobbes's redefinition of distributive justice, the justness of the sovereign's conduct, and hence his legal immunity, remains intact.     

罗尔斯“分配的正义观”与诺齐克“持有的正义观”对照研究

分配正当性的根据是什么 ?人的基本权利与平等的要件如何分配才是符合正义的 ?罗尔斯和诺齐克从两个向度上对此作了深入研究。罗尔斯从平等的权利出发 ,主张用“公平正义的两个原则”来取代功利主义 ,认为除非有充足理由证明应当不平等 ,否则就应当平等。并要求依据“公平的正义原则”分配公共资源和自由体系 ;诺齐克从人的不可剥夺的权利出发 ,认为除非有充足理由证明应当平等 ,否则就应当不平等 ,通过“资格”理论确立“持有”的正当性。在功利主义、财产权、国家的作用、自由平等、分配模式和社会稳定的意义等方面 ,罗尔斯与诺齐克的观点也各有契合与对立。     

Nationality, Distributive Justice and the Use of Force

To whom do we owe obligations of distributive justice? In the last decade a number of distinguished political theorists — such as David Miller and Yael Tamir — have defended a nationalist account of our distributive obligations. This paper examines their account of distributive justice. In particular, it analyses their contention (a) that individuals owe special obligations to fellow-nationals, (b) that these obligations are obligations of distributive justice and (c) that these obligations are enforceable. Miller and Tamir's justifications, I argue, do not support these claims. Moreover, I argue, (a) and (c) should only be accepted in a greatly qualified form and (b) should be rejected altogether. The paper thus concludes that the nationalists' preferred account of distributive justice is untenable.     

Justice: Metaphysical,After All?

Political liberals, following Rawls, believe that justice should be ‘political’ rather than ‘metaphysical.’ In other words, a conception of justice ought to be freestanding from first-order moral and metaethical views. The reason for this is to ensure that the state’s coercion be justified to citizens in terms that meet political liberalism’s principle of legitimacy. I suggest that privileging a political conception of justice involves costs—such as forgoing the opportunity for political theory to learn from other areas of philosophy. I argue that it is not clear that it provides any benefit in return. Whether a political conception of justice more adequately satisfies the liberal principle of legitimacy than a metaphysical conception of justice is an open question. To show this, I describe three ways in which political conceptions of justice have been developed within the literature. I then argue that while each might be helpful in finding reasons that reasonable citizens can accept, all face challenges in satisfying the liberal principle of legitimacy. Political conceptions of justice confront the same set of justificatory problems as ‘metaphysical’ conceptions. The question of whether a political conception is preferable should receive greater scrutiny.     

Basic Positive Duties of Justice and Narveson's Libertarian Challenge

Are positive duties to help others in need mere informal duties of virtue or can they also be enforceable duties of justice? In this paper I defend the claim that some positive duties (which I call basic positive duties) can be duties of justice against one of the most important principled objections to it. This is the libertarian challenge, according to which only negative duties to avoid harming others can be duties of justice, whereas positive duties (basic or nonbasic) must be seen, at best, as informal moral requirements or recommendations. I focus on the contractarian version of the libertarian challenge as recently presented by Jan Narveson. I claim that Narveson's contractarian construal of libertarianism is not only intuitively weak, but is also subject to decisive internal problems. I argue, in particular, that it does not provide a clear rationale for distinguishing between informal duties of virtue and enforceable duties of justice, that it can neither successfully justify libertarianism's protection of negative rights nor its denial of positive ones, and that it fails to undermine the claim that basic positive duties are duties of global justice.     

Logical and Epistemic Foundationalism About Grounding: The Triviality of Facts and Principles

In this paper, I seek to undermine G.A. Cohen’s polemical use of a metaethical claim he makes in his article, ‘Facts and Principles’, by arguing that that use requires an unsustainable equivocation between epistemic and logical grounding. I begin by distinguishing three theses that Cohen has offered during the course of his critique of Rawls and contractualism more generally, the foundationalism about grounding thesis, the justice as non-regulative thesis, and the justice as all-encompassing thesis, and briefly argue that they are analytically independent of each other. I then offer an outline of the foundationalism about grounding thesis, characterising it, as Cohen does, as a demand of logic. That thesis claims that whenever a normative principle is dependent on a fact, it is so dependent in virtue of some other principle. I then argue that although this is true as a matter of logic, it, as Cohen admits, cannot be true of actual justifications, since logic cannot tell us anything about the truth as opposed to the validity of arguments. Facts about a justification cannot then be decisive for whether or not a given argument violates the foundationalism about grounding thesis. As long as, independently of actual justifications, theorists can point to plausible logically grounding principles, as I argue contractualists can, Cohen’s thesis lacks critical bite.     

Contributive Justice and Meaningful Work

The dominant focus of thinking about economic justice is overwhelmingly distributive, that is, concerned with what people get in terms of resources and opportunities. It views work mainly negatively, as a burden or cost, or else is neutral about it, rather than seeing it as a source of meaning and fulfilment—a good in its own right. However, what we do in life has at least as much, if not more, influence on whom we become, as does what we get. Thus we have good reason also to be concerned with what Paul Gomberg has termed contributive justice, that is, justice as regards what people are expected and able to contribute in terms of work. Complex, interesting work allows workers not only to develop and exercise their capacities, and gain the satisfaction from achieving the internal goods of a practice, but to gain the external goods of recognition and esteem. As Gomberg’s analysis of the concept of contributive justice in relation to equality of opportunity shows, as long as the more satisfying kinds of work are concentrated into a subset of jobs, rather than shared out among all jobs, then many workers will be denied the chance to have meaningful work and the recognition that goes with it. In this paper I examine the contributive justice argument, suggest how it can be further strengthened, arguing, inter alia, that ignoring contributive injustice tends to support legitimations of distributive inequality.

Sen and Sensibility

Abstract

In The idea of justice (2009), Amartya Sen builds on his previous work on capabilities to develop a theory of comparative justice which he contrasts to the contractarian approach. The theory has two parts: the proper materials of justice (capabilities); and, a procedure for assessing those materials. The procedure that Sen advocates is one of open impartial deliberation opera-tionalised through Adam Smith’s impartial spectator, which he contends is superior to contractarian view operationalised by Rawls’ original position. In this paper we argue that Sen’s open impartiality is too open and defend a more bounded version as more workable regardless of the operationalising device used. Moreover, we demonstrate that Sen’s own arguments against the possibility of agreement, though aimed at the contractarian tradition, undermine his own attempts to generate a contentful account of justice by driving a wedge between the materials and procedures. Sen’s attempt to provide an alternative approach to political philosophy, we conclude, fails.     

The amplification of reason,or the recuperation of imagination: Peter Weir's Dead Poets Society

Abstract

The principal aim of this article is to focus on the problem of the applicability of Rawls’s ideas to the growing interest in developing what might now well be called a “global bioethics”. The specific focus is the question whether Rawls’s later work helps us to develop principles of distributive justice for such an alleged global bioethics, drawing on and critically evaluating Alan Buchanan’s critical discussion of Rawls’s The Law of Peoples. The main tenets of Rawls’s theory of justice, particularly as it concerns health care as one of our “primary needs”, are discussed, drawing on the work of Norman Daniels. Secondly, an argument for the necessity of a global approach to biomedical ethics in view of the need for a more equitable provision of health care between developed and developing worlds is developed. Thirdly, the main tenets of Rawls’s The Law of Peoples, the book in which Rawls extrapolated the implications of his theory of justice to the sphere of just international law, are discussed. Allen Buchanan’s criticisms of this Rawlsian enterprise are critically reviewed. On the basis of this discussion, two additional Principles of Global Distributive Justice (PGDJ) are formulated. The first principle is: “Justice in international relations requires that the burden of catastrophic events be distributed equitably between affected and unaffected peoples”. The implications of this principle are discussed, and complemented with an extended definition of the concept of “catastrophe”. Drawing on each component of that definition, the author then illustrates how the HIV/AIDS pandemic is the best current example of an international catastrophe, and how that calls for the implementation of the formulated principle. Then follows the formulation of the second principle for distributive justice for the law of peoples. This principle is: “Justice requires that efforts at an equitable distribution of burdens at the level of international relations be met with policies from the beneficiaries that, as far as possible, sustain the benefits attained from these efforts”. The author ends by showing how this principle is being neglected by the denialism of, for example, the South African policy-makers’ lack of a responsible response to the HIV/AIDS pandemic over the past decade, and by making suggestions how this denial and neglect might be rectified in the area of the provision of antiretroviral drugs to prevent mother-to-child transmission of HIV.     

Unity with(in) Plurality: Rawls’s Idea of Public Justification Reinterpreted

Abstract

This paper explores and interprets Rawls’s idea of public justification by analysing the types of reasons that citizens use when engaged in public justification of a political conception of justice. In particular, I focus on the distinction between “consensual” and “distributive” modes of justification. Some critics have argued that Rawls is unclear whether he is relying on “consensual” or “distributive” forms of reasoning; others argue that Rawls shifts inconsistently between them. I attempt to clarify this puzzle. I show that consensual and distributive modes of public reasoning are not mutually exclusive to each other. On the contrary, they are introduced as necessary components of public justification in Rawls’s theory. Thus, his model is consensual-cum-distributive. I also suggest some reasons why this model can better account for the liberal idea of pluralism, and how it offers a more realistic moral and political psychology, giving the account greater epistemic virtue than its alternatives.     

International Justice,Human Rights and Neutrality

A number of theorists have tried to resolve the tension between a western-oriented liberal scheme of human rights and an account that accommodates different political systems and constitutional ideals than the liberal one. One important way the tension has been addressed is through a “neutral” or tolerant, notion of human rights, as present in the work of Rawls, Scanlon and Buchanan. In this paper I argue that neutrality cannot by itself explain the difference between rights considered appropriate for liberal states and rights considered to be human rights proper. The central arguments used by neutralist theorists presuppose, rather than justify, this differential treatment. Instead, that difference can be understood only by reference to the purpose of human rights as distinct from the constitutional rights of a liberal state. This requires us to reassess the point and purpose of a theory of international justice, in contrast to justice for a domestic and politically separate society. In the case of a theorist like Rawls, human rights represent guides to the foreign policy of a liberal state, rather than to principles by which all states are expected to abide. That is because of Rawls’ acceptance that no common, authoritative, third-party, institutions capable of imposing duties on all agents uniformly exist or can exist. This also makes his theory inherently conservative about human rights, given that they are simply to act as a guide to which states can be treated as legitimate when it comes to liberal foreign policy: those that possess institutions that can be said to represent a peoples, rather than being imposed through violence. This standard is lower than the ideal set of rights extended to all in a liberal society. This revised version was published online in July 2006 with corrections to the Cover Date.     

No Justice Without Democracy: A Deliberative Approach to the Global Distribution of Wealth

Abstract

The debate about global distributive justice is characterized by an often stark opposition between universalistic approaches, advocating an egalitarian global redistribution of wealth (Beitz, Pogge, Barry, Tan), and particularistic positions, aiming to justify a restriction of redistribution to the domestic community (D. Miller, R. Miller, Blake, Nagel, Rawls). I argue that an approach starting from the deliberative model of democracy (Habermas) can overcome this opposition. On the one hand, the increasingly global scope of economic interactions implies that the range of individuals concerned with the redistribution of wealth should also be increasingly universal. On the other hand, the need for democratic deliberation refers to the fact that demands of justice should be contextual and should take into account the particular circumstances, needs and values of the people concerned. Both concerns can be realized simultaneously only within a multi‐layered democratic system in which redistribution is a concern at the domestic, the international and the global level.     

Natural Duties of Justice in a World of States

The agency objection to applying distributive justice globally is that principles of distributive justice need to apply to the behaviour of a special kind of institutional agent of distributive justice because of the special powers of that agent. No such agent exists capable of configuring cooperative arrangements between all persons globally, and so distributive justice does not apply globally. One response to institutional views of this kind is that they do not rule out Natural Duties of Justice that fall on all of us to bring about institutional agencies capable of global distributive justice. In this article I argue that this move presupposes a particular, teleological, conception of justice whilst institutional accounts most plausibly rest on a non‐teleological one. I provide an argument for favouring the non‐teleological conception. I also show why alternative ways of arguing for global Natural Duties of Justice do not get around this controversy. The debate is at the level of presuppositions about justice, and relying on a partisan conception is question begging.