The article argues that the possibility of an unlimited gap in income and wealth between the top and bottom segments of society is incompatible with a democratic commitment to political equality. T...

How rich should the 1% be? And, most importantly, when does the distance in economic resources between the richest citizens and ‘us’, the average citizenry, become a concern for justice? This volume explores how excessive economic inequality gives the best-off considerably more political influence than average citizens, thereby violating political equality. It argues that the gap between the best-off and the worst-off should not be reduced because it is good, but rather as an inescapable instrument to protect citizens from (...) the risk of material domination. For this reason, it defends the ‘principle of proportionality’: economic inequality should not exceed a certain range or proportion to enable both the best-off and the worst-off to be co-authors of the legal, political, and socioeconomic rules that govern the ‘social’ relations in which they are involved. Further, the book discusses material domination and explains how money influences politics and what are the remedies for this phenomenon; how social justice should face and harmonise power, poverty, efficiency, individual merit, and economic liberties; and, most importantly, how to determine income and wealth limit ratios in a liberal democracy. A thoughtful investigation on the interdependencies of money and justice and their influence our socio-political systems, this volume will be of great interest to students and researchers of political theory, political philosophy, economics and development, economics theory and philosophy, and social policy. (shrink)

This inquiry starts from two passages in book 1 of Cicero's de Re Publica, both concerned with the failings of democracy as a political form. The first occurs in Scipio Aemilianus' opening criticism of the three unmixed constitutions. The weakness of democracy is that cum omnia per populum geruntur quamvis iustum atque moderatum, tamen ipsa aequabilitas est iniqua, cum habet nullos gradus dignitatis.

Lorsqu'il est question de distribuer les soins de santé de manière juste, le critère qui est le plus souvent spontanément proposé est le besoin. Il faut soigner chacun selon ses besoins. Dans cette étude, nous examinons la signification de ce critère et ses limites. Il apparaît en effet, dès qu'on entre dans les détails, qu'on rencontre de graves difficultés lorsqu'on veut l'appliquer. Ces difficultés sont conceptuelles (le besoin a plusieurs significations) et substantielles (le besoin est insuffisant comme critère). Nous concluons (...) que la justice demande qu'on abandonne au moins partiellement l'approche de haut en bas (l'application d'un critère aux cas particuliers) au profit d'une approche de bas en haut, laissant plus de place au patient comme autorité de décision. When we consider just distribution of health care, the criterion we usually encounter is need. We must treat patients proportionally to their needs. In this paper, we examine the meaning and limits of this criterion. As soon as we go into the details, we encounter serious difficulties in its application. Those difficulties are conceptual (need has various meanings) and substantial (need is not enough as a criterion).We conclude that justice requires a partial renunciation to a top-down approach (application of a criterion to particular cases) on behalf of a bottom-up one, giving more weight to the patient, as an authority of choice. (shrink)

This article develops an intuitive idea of proportionality as a placeholder for a substantive conception of equality, and contrasts it with Ripstein’s ideas, as presented in an annual guest lecture to the Society of Applied Philosophy in 2016. It uses a discussion of racial profiling to illustrate the conceptual and normative differences between the two. The brief conclusion spells out my concern that talk of ‘proportionality’, though often helpful and, sometimes, necessary for moral reasoning, can end up concealing, rather than (...) illuminating, people’s claims to be treated as equals. (shrink)

This paper defends a contextualist approach to epistemic injustice according to which instances of such injustice should be looked at as temporally extended phenomena (having developmental and historical trajectories) and socially extended phenomena (being rooted in patterns of social relations). Within this contextualist framework, credibility excesses appear as a form of undeserved epistemic privilege that is crucially relevant for matters of testimonial justice. While drawing on Miranda Fricker's proportional view of epistemic justice, I take issue with its (...) lack of attention to the role that credibility excesses play in testimonial injustices. I depart from Fricker's view of the relation between credibility excesses and credibility deficits, and I offer an alternative account of the contributions that undeserved epistemic privileges make to epistemic injustices. Then, through the detailed analysis of To kill a mockingbird, I elucidate the crucial role played by the social imaginary in creating and sustaining epistemic injustices, developing an analysis of the kind of social blindness produced by an oppressive social imaginary that establishes unjust patterns of credibility excesses and deficits. (shrink)

This paper seeks to articulate a conception of justice in reparations for victims of human rights violations when the aim is to repair a large number of cases, as opposed to individual, isolated cases. It starts with an effort to establish some semantic clarity by trying to distinguish between two different contexts for the use of the term “reparations”. It discusses some of the problems with merely transplanting the ideal of compensation in proportion to harm from its natural home (...) in the resolution of individual judicial cases, and using it as a standard of justice for massive reparations programs. Instead, it argues in favor of thinking about justice in the context of massive cases in terms of the achievement of three goals, namely, recognition, civic trust, and social solidarity — three goals that are intimately related to justice. Finally, it tries to shed light on the basic trade-offs that accompany some of the choices that have to be made in the process of constructing a comprehensive and coherent reparations program. (shrink)

This article analyses proportionality as a potential element of a theory of morally justified surveillance, and sets out a teleological account. It draws on conceptions in criminal justice ethics and just war theory, defines teleological proportionality in the context of surveillance, and sketches some of the central values likely to go into the consideration. It then explores some of the ways in which deontologists might want to modify the account and illustrates the difficulties of doing so. Having set out (...) the account, however, it considers whether the proportionality condition is necessary to a theory of morally justified surveillance. The article concludes that we need and should apply only a necessity condition, but notes that proportionality considerations may retain some use in in practice, as a form of coarse‐grained filter applied before assessing necessity when deliberating the permissibility of potential forms of surveillance. (shrink)

As world food and fuel prices threaten expanding urban populations, there is greater need for the urban poor to have access and claims over how and where food is produced and distributed. This is especially the case in marginalized urban settings where high proportions of the population are food insecure. The global movement for food sovereignty has been one attempt to reclaim rights and participation in the food system and challenge corporate food regimes. However, given its origins from the peasant (...) farmers' movement, La Via Campesina, food sovereignty is often considered a rural issue when increasingly its demands for fair food systems are urban in nature. Through interviews with scholars, urban food activists, non-governmental and grassroots organizations in Oakland and New Orleans in the United States of America, we examine the extent to which food sovereignty has become embedded as a concept, strategy and practice. We consider food sovereignty alongside other dominant US social movements such as food justice, and find that while many organizations do not use the language of food sovereignty explicitly, the motives behind urban food activism are similar across movements as local actors draw on elements of each in practice. Overall, however, because of the different histories, geographic contexts, and relations to state and capital, food justice and food sovereignty differ as strategies and approaches. We conclude that the US urban food sovereignty movement is limited by neoliberal structural contexts that dampen its approach and radical framework. Similarly, we see restrictions on urban food justice movements that are also operating within a broader framework of market neoliberalism. However, we find that food justice was reported as an approach more aligned with the socio-historical context in both cities, due to its origins in broader class and race struggles. (shrink)

Cosmic Justice Hypotheses. -/- This applied-logic lecture builds on [1] arguing that character traits fostered by logic serve clarity and understanding in ethics, confirming hopeful views of Alfred Tarski [2, Preface, and personal communication]. Hypotheses in one strict usage are propositions not known to be true and not known to be false or—more loosely—propositions so considered for discussion purposes [1, p. 38]. Logic studies hypotheses by determining their implications (propositions they imply) and their implicants (propositions that imply them). Logic (...) also studies hypotheses by seeing how variations affect implications and implicants. People versed in logical methods are more inclined to enjoy working with hypotheses and less inclined to dismiss them or to accept them without sufficient evidence. Cosmic Justice Hypotheses (CJHs), such as “in the fullness of time every act will be rewarded or punished in exact proportion to its goodness or badness”, have been entertained by intelligent thinkers. Absolute CJHs, ACHJs, imply that it is pointless to make sacrifices, make pilgrimages, or ask divine forgiveness: once acts are done, doers must ready themselves for the inevitable payback, since the cosmos works inexorably toward justice. Ceteris Paribus CJHs, CPCJHs, on the other hand, such as “in the fullness of time every act will be rewarded or punished in exact proportion to its goodness or badness—other things being equal”, leave room for exceptions. For example, some people subscribing to Ceteris Paribus CJHs think that certain bad acts can be performed with impunity as long as certain procedures are carried out previous to, or simultaneous with, or even after the acts. Belief Ceteris Paribus CJHs has been exploited by unscrupulous “spiritual leaders” who claim to have power to grant exceptions. In opposition to belief in CPCJHs are CJHs that hold belief in CPCJHs to be inherently wrong and subject to punishment. Other variants of CJHs are Cumulative Cosmic Justice Hypotheses, such as “in the fullness of time every person will be rewarded or punished in exact proportion to the net goodness or badness of their acts”. Still other variants include the Hereditary Cumulative Cosmic Justice Hypotheses, such as “in the fullness of time every person will be rewarded or punished in exact proportion to the net goodness or badness of their ancestors’ acts”. [1] JOHN CORCORAN, Inseparability of Logic and Ethics, Free Inquiry, S. 1989, pp. 37–40. [2] ALFRED TARSKI, Introduction to Logic, Dover, 1995. (shrink)

According to all-luck egalitarianism, the differential distributive effects of both brute luck, which defines the outcome of risks which are not deliberately taken, and option luck, which defines the outcome of deliberate gambles, are unjust. Exactly how to correct the effects of option luck is, however, a complex issue. This article argues that (a) option luck should be neutralized not just by correcting luck among gamblers, but among the community as a whole, because it would be unfair for gamblers as (...) a group to be disadvantaged relative to non-gamblers by bad option luck; (b) individuals should receive the warranted expected results of their gambles, except insofar as individuals blamelessly lacked the ability to ascertain which expectations were warranted; and (c) where societal resources are insufficient to deliver expected results to gamblers, gamblers should receive a lesser distributive share which is in proportion to the expected results. Where all-luck egalitarianism is understood in this way, it allows risk-takers to impose externalities on non-risk-takers, which seems counterintuitive. This may, however, be an advantage as it provides a luck egalitarian rationale for assisting ‘negligent victims’. (shrink)

Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society’s transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable (...) democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies. (shrink)

This article has three main parts, Section 2 considers the nature and extent to which individuals who are well-off have a moral obligation to aid the worlds needy. Drawing on a pluralistic approach to morality, which includes consequentialist, virtue-based, and deontological elements, it is contended that most who are well-off should do much more than they do to aid the needy, and that they are open to serious moral criticism if they simply ignore the needy. Part one also focuses on (...) the United States, and illustrates both how incredibly wealthy the U.S. is and some of the spending habits of its citizens; however, its considerations apply to the well-off generally. Section 3 considers whether justice provides reasons for helping the needy. Noting that justice in an extremely complex notion, it discusses numerous considerations relevant to justices scope and implications, including an extended Rawlsian conception of justice, an absolute conception, a comparative conception, the distinction between natural and social justice, and various elements of common-sense morality. Section 2 also distinguishes between agent-relative justice-based reasons, which are relevant to whether we act justly, and agent-neutral justice-based reasons, which are relevant to whether we have reasons of justicefor acting. Correspondingly, it argues that even if one can ignore the needy without acting unjustly, as philosophers like Robert Nozick and Jan Narveson contend, there may be powerful reasons of justicefor addressing their plight. Section 4 briefly address the responsibilities of international organizations like the World Bank, the International Monetary Fund (IMF), and World Trade Organization (WTO). Drawing on Section 2, it is suggested that in addition to standard reasons to act justlytowards needy members of the worlds community, there will be reasons of justicefor such organizations to aid the needy in both present, and future, generations. The article concludes by contending that the well-off in countries like the U.S. have reason to view international organizations like the World Bank, IMF, and WTO as their agents, and to seek to insure that they alleviate misfortunes amongst the worlds needy. (shrink)

This paper argues against the view favored by many contemporary scholars that corrective justice in the Nicomachean Ethics is essentially compensatory and in favor of a bifunctional account according to which corrective justice aims at equalizing inequalities of both goods and evils resulting from various interactions between persons. Not only does the account defended in this paper better explain the broad array of examples Aristotle provides than does the standard interpretation, it also better fits Aristotle’s general definition of (...) what is just. In the last section, the paper argues, again against the standard interpretation, that proportional reciprocity, the kind of justice discussed in Nicomachean Ethics V.5, has two forms and is closely linked to corrective justice. Although corrective justice and proportional reciprocity are conceptually distinct and do different work in Aristotle’s political philosophy, instances of proportional reciprocity are instantiated by instances of corrective justice. This linkage, the paper concludes, helps to explain why Aristotle would assign corrective justice such a prominent place in his theory of justice. (shrink)

A reading of Solon's elegy to eunomia through Castoriadis's seminal theory of autonomy as the explicit and reflective self-institution of society can elucidate the question of what constitutes sound governance. Solon proposes that the dignified realm of mortal life is the ethos of citizenship in a political state. Accordingly, this regime, which relies on intrinsic justification, needs to be understood in ethico-political terms. Its inherent ordinance is the rule of justice - the reciprocity of equitable proportion governing relations among (...) citizens. It is the responsibility of these citizens to safeguard the governing reciprocity, and when they neglect it, the entire state suffers the dire consequences of hubris. The political order that best observes and promulgates the rule of justice is good governance, which functions both as self-limitation and as a balancing measure by arranging the contest of civic forces into a fitting harmony. (shrink)

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two (...) recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty. (shrink)

The scarcity of resources required to produce justice is manifested in the relation between the accuracy, depth, and scope of materially possible forms of justice. Ceteris paribus , increases in the accuracy of justice must come at the expense of its depth and scope, and vice versa, though they are not linearly proportioned. The accuracy of justice is the degree of agreement between the possible results of attempts to implement a theory or principles of justice (...) and the desired result according to that theory or those principles of justice. The scope of justice measures how broadly the principle or theory of justice is intended to apply. The depth of justice measures the gap between existing social norms and the theory or principles of justice we examine within the specified scope. This three-dimensional model explains public policies, laws, and regulations that increase the scope or depth of justice at the cost of a decrease in its accuracy – rough forms of justice such as measures of transitional justice, affirmative action, mandatory sentencing, simplified tax codes, collective guilt and victimhood, and general amnesties. The scarcity of resources necessary for justice can contract or expand. The normative choice between principles of justice that prefer accuracy and those that favor scope or depth usually corresponds, respectively, with rights-based deontological theories and consequentialist ethics. (shrink)

In 1994, Congress established more than sixty new capital crimes with wide public support. Davis argues that, if the U.S. is ever to join the majority of the world in abolishing capital punishment, opponents of the death penalty must make a stronger philosophical case against it. He systematically dissects the arguments in favor of capital punishment and demonstrates why they are philosophically superior to opposing arguments. By connecting the death penalty to a general theory of punishment in which penalties are (...) retributive in proportion to the crime, Davis shows why we must reconceive the entire criminal justice system and address violent crime more successfully before the death penalty can be successfully opposed. (shrink)

Retributive restrictions are principles of justice according to which what a criminal deserves on account of his individual conduct and character restricts how states are morally permitted to treat him. The main arguments offered in defense of retributive restrictions involve thought experiments in which the state punishes the innocent, a practice known as telishment. In order to derive retributive restrictions from the wrongness of telishment, one must engage in moral argument from generalization. I show how generalization arguments of the (...) same form can be used subversively to derive morally unacceptable conclusions from other scenarios in which the state intentionally inflicts undeserved coercion. For example, our considered moral convictions approve of punishment policies that inflict collateral damage, such as the ubiquitous policy of excluding the family members of inmates from prison facilities outside visiting hours. I present a generalization argument for the conclusion that these policies are seriously unjust. If we firmly believe that these policies are not unjust, then we should put less stock in generalization arguments. We should not use them to support retributive restrictions. This conclusion has broad implications for the theory and practice of criminal justice. (shrink)

This paper challenges the claim that the traditional Christian (Augustinian, Thomistic, Anselmian) idea of hell as a form of eternal punishment (damnation and torment) for human sin cannot be made consistent with the idea of proportionate punishment, and it raises concerns with the notion that divine justice requires divine forgiveness and mercy. It argues that divine justice entails or at least permits retribution as the meting out of punishment by God to those who deserve it in proportion to (...) the degree and amount of harm unduly and responsibly caused by sinners to others. For God to fail to punish those who deserve it in proportion to their harmful wrongdoings would imply God’s failure to be both just and omnibenevolent. (shrink)

This paper challenges the claim that the traditional Christian (Augustinian, Thomistic, Anselmian) idea of hell as a form of eternal punishment (damnation and torment) for human sin cannot be made consistent with the idea of proportionate punishment, and it raises concerns with the notion that divine justice requires divine forgiveness and mercy. It argues that divine justice entails or at least permits retribution as the meting out of punishment by God to those who deserve it in proportion to (...) the degree and amount of harm unduly and responsibly caused by sinners to others. For God to fail to punish those who deserve it in proportion to their harmful wrongdoings would imply God’s failure to be both just and omnibenevolent. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free (...) will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

A society is said to age when its number of older members increases in relation to its number of younger members. The societies in most of the world’s industrialized nations have been aging since at least 1800. In 1800 the demographic makeup of developed countries was similar to that of many Third World countries in the early 1990s with roughly half the population under the age of 16 and very few people living beyond age of 60. Since that time, increases (...) in life expectancy, combined with declines in fertility rates, have dramatically increased the proportion of older persons in developed nations. The rapid increase in the number of older persons relative to younger ones carries important societal implications. In the domain of healthcare, societal aging will increase costs and exert greater pressure to ration services. It will, thus, bring to the fore questions, regarding a just distribution of healthcare between young and old age groups. This paper considers some of the most influential arguments to date for age-based rationing of health care. I show that these arguments fall short, and that the theoretical assumptions underlying them do not withstand careful scrutiny. (shrink)

Retributivists who proclaim our moral obligation to punish criminals have displayed, on their own behalf, a type of argumant which I shall call Moral Balance. There are three versions of Moral Balance. According to Moral Balance I, retaliatory punishment restores the equality disturbed by the criminal. Moral Balance II philosophers admire the proportion between morality and welfare which punishment can yield. Those who hold with Moral Balance Ill are fascinated by the equilibrium of social benefits and burdens set by punishment. (...) All three versions are flawed as follows: they imply that crime is morally justified.Moral Balance 1: EqualityHegel informs us that:his is the action of a rational being and this implies that it is something universal and that by doing it the criminal has laid down a law which he has explicitly recognized in his action and under which in consequence he should be brought as under his right. (shrink)

Ken Binmore argues that justice consists in a proportional bargaining equilibrium of a ‘game of morals’, which corresponds to a Nash bargaining equilibrium of a ‘game of life’. His argument seems unassailable if rational agents are predominantly self-interested, an assumption that he is apparently willing to make on the grounds that human behaviour is ultimately constrained in accord with the selfish gene paradigm. But there is no compelling scientific evidence for that paradigm. Rather, human nature appears to be (...) highly plastic. If so, rational agents might eventually be moulded by cultural forces into social and moral actors who effectively believe that they are the same person-no different from anyone else−when it comes to certain vital personal interests which ought to be treated as rights. In this context, a utilitarian outcome is an efficient and fair equilibrium of the game of life. Compliance with the rules is enforced by the actor’s own conscience, a powerful internal ‘judicious spectator’ which threatens to inflict harsh punishment in the form of intense feelings of guilt for cheating. (shrink)

Theorists have long debated whether John Rawls’ conception of justice as fairness can be extended to nonideal (i.e. unjust) social and political conditions, and if so, what the proper way of extending it is. This paper argues that in order to properly extend justice as fairness to nonideal conditions, Rawls’ most famous innovation – the original position – must be reconceived in the form of a “nonideal original position.” I begin by providing a new analysis of the ideal/nonideal (...) theory distinction within Rawls’ theoretical framework. I then systematically construct a nonideal original position, showing that although its parties must have Rawls’ principles of ideal justice and priority relations as background aims, the parties should be entirely free to weigh those aims against whatever burdens and benefits they might face under nonideal conditions. Next, I show that the parties ought to aim to secure for themselves a special class of nonideal primary goods: all-purpose goods similar to Rawls’ original primary goods, but which in this case are all-purpose goods individuals might use to (A) promote Rawlsian ideals under nonideal conditions, (B) weigh Rawls’ principles of ideal justice and priority relations against whatever burdens and benefits they might face under nonideal conditions, and (C) effectively pursue their most favored weighting thereof. I then defend a provisional list of nonideal primary goods which include opportunities to participate effectively in equitable and inclusive grassroots reform movements guided by a series of substantive aims. Finally, I briefly speculate on how the parties to the nonideal original position might deliberate to principles of nonideal justice for distributing nonideal primary goods, suggesting that those goods should be distributed in proportion to unjust disadvantage. (shrink)

The paper focuses on Plato’s treatment of equality and inequalities in his best constitution in the Republic and in the second best constitution in the Laws. Plato was aware of the equality solution and various inequalities solutions to the problem of distributing political offices, the burdens of defense, other careers, and property and wealth. In his best constitution he rejected participatory democracy’s solution of equality of political offices, and also rejected inequality distributions of political office on the bases of courage (...) only or wealth only or on force only. He opted for proportional inequality in the distribution of all careers, including ruling, defense, and the provision of goods and services, on the basis of inborn inequalities in intelligence, spirit, abilities in the arts/crafts, and appropriate education. Such a distribution is directed by his principle of social or city justice and justified by his belief that only with such distributions would the city function best. In the economic domain he opted for radical inequality, the abolition of private property and wealth for the ruling classes and the military—a radical divorce between power and wealth, which is his solution to the political problem posed by Thrasymachus. For the remaining and largest class, the providers of basic goods and services, he proposed functional economic floors and ceilings—allowing farmers and craftsmen what they needed, and not more, for doing their jobs well. Later, in his second best constitution, Plato opted for democratic equality in the distribution of the main political offices, for absolute equality in the division of land, and very measured inequalities in other goods and other offices. Plato now seems to think that the very great inequalities of his best constitution/city would create conflicts and factions too difficult to assuage or overcome, since he now cites repeatedly the avoidance of faction as the main reason for his newly found political and economic equality and for the avoidance of extreme inequalities. At the same time, he lowers his earlier and very high standard of the knowledge required for ruling well, which allows many more citizens to participate in ruling the city well; they no longer need to know the form of the Good, but it is sufficient to know the goods of the soul, the goods of the body, the social goods, and the teleological priority of the goods of the soul over all other goods—all the others to be pursued for the sake of the goods of the soul. Looking at both books, it is rather remarkable that all the solutions to the distribution problem of social justice that Plato discusses—equality, proportional inequality, floors and ceilings, and distance between the best off and the worst off—find an echo in modern solutions to the distributions of similar social advantages and burdens. (shrink)

This chapter contains sections titled: I II III IV V.

Two criteria, one for distributive and one for commutative justice are formulated, the latter applying to cases of free cooperation. Both criteria follow Aristotle's idea of proportional equality which in the first case is equality in the fulfillment of legitimate claims, in the second case equality of the gains derived from cooperation. The theory of social welfare functions is employed in the definition of the two criteria, but such functions are applied only to morally or legally justified interests. (...) A theory of justice only has to say how to satisfy conflicting legitimate claims, it is argued, but not what interests are justified in some given context. (shrink)

Two criteria, one for distributive and one for commutative justice are formulated, the latter applying to cases of free cooperation. Both criteria follow Aristotle's idea of proportional equality which in the first case is equality in the fulfillment of legitimate claims, in the second case equality of the gains derived from cooperation. The theory of social welfare functions is employed in the definition of the two criteria, but such functions are applied only to morally or legally justified interests. (...) A theory of justice only has to say how to satisfy conflicting legitimate claims, it is argued, but not what interests are justified in some given context. (shrink)

The article discusses the problem of natural justice which has been considered by Aristotle in his (1) Nicomachean and Eudemian Ethics and (2) Magna Moralia. In his Nicomachean and Eudemian Ethics Aristotle says of natural justice that it is changeable and not the same everywhere. The implication seems to be that no action, not even murder, is always wrong. But, as is evident especially from his Magna Moralia, Aristotle distinguishes justice into the “what” (equality), the “in what” (...) (proportion between persons and things), and the “about what” (what things are exchanged with which persons). The article concludes that Aristotle allows for variability only in the “about what,” while in the “what” and the “in what” he allows for no variability. (shrink)

Punishing groups raises a difficult question, namely, how their punishment can be justified at all. Some have argued that punishing groups is morally problematic because of the effects that the punishment entails for their members. In this paper we argue against this view. We distinguish the question of internal justice—how punishment-effects are distributed—from the question of external justice—whether the punishment is justified. We argue that issues of internal justice do not in general undermine the permissibility of punishment. (...) We also defend the permissibility of what some call “random punishment.” We argue that, for some kinds of collectives, there is no general obligation to internally distribute the punishment-effects equally or in proportion to individual contribution. (shrink)

La quête de ce qui est appelé de manière si erronée la justice sociale est à notre époque la principale menace à l’égard de la propriété privée. Hayek se trompait quand il concluait que l’expression “justice sociale” est “entièrement creuse et dénuée de signification”. Car ceux qu’on devrait désormais appeler les sociauxdémocrates de tous les partis, et non plus les socialistes, se trompent en maintenant qu’est “socialement” juste l’injustice manifeste consistant à s’approprier des proportions toujours croissantes de richesses (...) et de revenus acquis de manière juste par quelques individus, afin de les transférer à d’autres individus qui ne peuvent prétendre en aucune façon à leur possession.The pursuit of what is so misleadingly called social justice is in our time the main threat to private property. Hayek was mistaken in concluding that the expression “social justice” is “entirely empty and meaningless”. For what is wrong with those who should now perhaps be called not the socialists but the social democrats of all parties is that they insist on misdescribing as “socially” just the manifest injustice of seizing ever increasing amounts of the justly acquired wealth and income of some people in order to transfer it to others who have no such just claims to its possession. (shrink)

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in (...) part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment. (shrink)

Many organizations, companies, and so on are committed to certain representational aims as regards the composition of their workforce. One motivation for such aims is the assumption that numerical underrepresentation of groups manifests discrimination against them. In this article, I articulate representational aims in a way that best captures this rationale. My main claim is that the achievement of such representational aims is reducible to the elimination of the effects of wrongful discrimination on individuals and that this very important concern (...) is, in principle, compatible with the representation of various groups diverging widely from their share of the overall population. The discussion also shows that we should ensure that a preoccupation with groups' numbers in relation to the population as a whole does not lead us away from our real aim, for example because we are blinded to the effects of discrimination against numerically overrepresented groups, or overlook the innocently different ambitions of some numerically underrepresented groups. In relation to the latter point, I appeal to the fact that many luck egalitarians think justice should be ambition sensitive. Also, the time-relative account of representational aims expounded shows that, and how, representational aims should accommodate the changing composition of populations over time. (shrink)

One characteristic of tradeable emission permits is that efficiency and justice considerations can be separated. While Pareto optimality is an accepted efficiency principle, there is not a consensus on a 'best' equity principle. In this article, conventional justice principles are used to evaluate alternative allocation rules for tradeable CO2 permits, and a distribution proportional to population is recommended. Arguments against the population rule are discussed, especially those pertaining to political feasibility. While justice and political feasibility may (...) indeed contrast, it still may be possible to emphasise the population rule in the future. (shrink)

When we want to justify claims against one another, we discover that conceptual thought alone is not sufficient to legitimize property and income in the relative and proper proportions among members of a productive group. Instead, the basis for justification should also be seen in motivational states, validated less by rational thought than by an effective behaviour. To circumnavigate otherwise dangerously utopian claims to justice, the social sciences, and especially behavioural economics, are the most reliable basis for normative distributive (...) justice. This article builds on recent findings of experiments, first of all in order to give proof of the extent to which a general behavioural tendency towards equality is widespread among people, and second of all in order to highlight ‘desert’ and ‘need’ as the crucial criteria of just distribution, which will then sum up to justified inequality in the economic sphere. (shrink)

When faced with multiple claims to a particular good, what does distributive justice require? To answer this question, we need a substantive moral theory that will enable us assign relative moral weights to the parties' claims. But this is not all we need. Once we have assessed the moral weight of each party's claim, we still need to decide what method of distribution to employ, for there are two methods open to us. We could take the winner-take-all approach, and (...) award the good to the party with the strongest claim. On the other hand, we could divide the good proportionally, according to the relative strength of each party's claim. Because the choice between these two methods of distribution can have a dramatic impact on the resulting pattern of distribution, the choice presents a question of justice. But this is a question of justice that is often overlooked. As a result, we currently employ the principle of proportionality far less often than justice actually requires. If we focus on the question of distributive method, however, we are not only better able to understand how certain reasons enter into our all-things-considered moral judgments, we are also able to explain some perplexing but common aspects of our moral beliefs: how rights can be said to have peremptory force, yet still be balanced against other important interests; how justice can sometimes require compromise, yet sometimes require victory; and how a moral theory can avoid being too demanding while still being demanding enough. Key Words: autonomy • equality • indivisibility • inviolability • weighted lotteries • rights. (shrink)

The phenomenon of global warming, the anthropogenic theory of its genesis and some of the implications of that theory are introduced as a case-study of a global environmental problem involving issues of equity between peoples, generations and species. In particular, recognition of the view that the absorptive capacities of the atmosphere comprise an instance of the Common Heritage of Humankind would have a key bearing on negotiations downstream from the Kyoto Protocol, suggesting the proportioning of emission quotas to population, and (...) also limits to the inter-state trading of quotas. This view and these possible implications are discussed; international regimes with such a basis are argued to have a firmer foundation than ones based on historical emission levels (such as the Kyoto agreement), and to escape the charge of anthropocentrism to which stress on the Common Heritage of Humankind appears to expose them. The anthropogenic theory might be held, instead, to favour tying emissions quotas to aggregate historical emissions of the last two centuries. But intergenerational equity requires a sustainable international regime, based on universal principles rather than history. (shrink)

International borders concentrate opportunities in some societies while limiting them in others. Borders also prevent those in the less favored societies from gaining access to opportunities available in the more favored ones. Both distributive effects of borders are treated here within a comprehensive framework. I argue that each state should have broad discretion under international law to grant or deny entry to immigration seekers; but more favored countries that find themselves under immigration pressure should be legally obligated to fund development (...) assistance for countries that generate immigration pressure. Funding should be subject to conditions of fair and effective use in recipient countries, and should aim at a near-term target of immigration-pressure equilibrium. Equilibrium obtains between two countries when, given appropriate background circumstances, the same proportion of individuals in each manifests a preference to migrate to the other. If meeting the equilibrium target in the short term would be to the long-term disadvantage of the worst-off countries, then a Pareto-superior alternative target supersedes. It mandates development assistance at the level that yields the most favorable human development projections for the worstoff countries. An implementable set of institutions is described that can achieve the equilibrium goal in the long term without unduly sacrificing other important ends, including economic growth, political stability, cultural integrity, the political autonomy of distinct societies, and their proper accountability for policy choices. Key Words: global justice • immigration • borders • development • distributive justice • development assistance • equality • international law • cosmopolitanism. (shrink)

The analysis demonstrates that for Plato the principal aim of punishment is not the defence of values acknowledged by the legal system nor the well being of the state, but the good of the individual – his personal development, which is, first of all, moral development. This development consists of the attainment of the greatest – situated on the level of existence – excellence of the subject, which is the virtue of justice, an inner unity based on inner regularity, (...) order, harmony and straightness. Attainment of the virtue of justice is likewise the attainment of happiness. In principle, punishment ought to be adapted and proportionate not to the act committed, but to the state of the subject, the state of his soul. It should be appropriate medicine, returning health to the soul, restoring inner order, harmony and straightness. The elements of a retributive concept of punishment become salient above all in the case of the most hardened criminals, who are internally so spoiled that no amelioration is possible, no punishment can be a suitable, sufficient medicine. Yet, the punishment is deserved, proportional to the degree of depravity of the offender, and thus possesses a deterrent value. Moreover, the suffering of the offender, since it is beneficial for others, contributes to his inner unity and his goodness. The preceding analysis concerning Plato’s conception of punishment clearly shows that the aim of punishment is not the good of the state, nor the abstractly conceived order of justice. The aims of punishment are not located beyond the individual (the individual soul). Therefore, in this conception of punishment there are no elements of thinking typical of that in the spirit of totalitarianism. The law and the state serve the good of the individual. This is an important argument on behalf of the postulate of a non-totalitarian interpretation of the Republic and the others dialogs of Plato. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

The problem of economic justice is the division and distribution of income and wealth. Is a just distribution an equal distribution, or are some unequal distributions just, and if so which ones? We critically examine what the ideal theories of justice of Aristotle and Rawls say or imply about a just distribution of wealth and income in the best of circumstances. Rawls’ contractarian view takes strict equality to be the benchmark of justice; Aristotle’s teleological theory claims that (...) the equality appropriate to distributive justice is proportional, equality of ratios among persons’ shares of a good and their respective merits for that good. The applications of the two theories result in different distributional outcomes. Aristotle’s justice principle will result in unequal outcomes if the merits of persons are unequal and in equal outcomes if the merits are equal. An example of the latter is his best polis and constitution--its ideal citizens will have superlative and equal merits and they will justly receive equal political and economic shares. Although he supports reducing economic inequalities in actual cities, serious inequalities in resources will remain. Rawls’ basic principle of justice will produce equal shares. But democracies allow great inequalities in wealth and income, presumably recognizing that some inequalities promote the common good; everyone is better off when some economic incentives are rewarded. But which economic inequalities are just? Rawls in his second principle of justice identifies the most widely held way of answering this question. (shrink)

In just proportional exchange, under Aristotle's theory of reciprocal justice, superior sharers in a community materially assist the weaker, and receive honour as a reward. Aristotle's economic thought is represented with a system of 18 formulae. Explained are: (1) What Aristotle means when he says that it is impossible for two sharers or their erga to be commensurable; (2) The extent to which the variables in Aristotle's proportions can be quantified. (3) What diagonal pairing ( ?ατ δ? ??τ?o? (...) σ ??????) is; (4) How need makes sharers and their erga ?sufficiently' commensurable; and (5) Aristotle's theory of what is just in exchange. (shrink)

Comme une symphonie, la justice s’écoute et se déchiffre grâce aux notes qui la composent. Le résultat est l’effet dynamique des notes. On ne dit pas ce qu’est la justice, mais ce qui est conforme à la justice qui fait partie de nous, de l’Être et de la société. Dans la symphonie de la justice, le droit ou les droits interviennent comme une sorte d’interludes pour assurer l’oralité et les tonalités musicales de la justice.Le droit (...) ou les droits prescrivent les contours de la justice. Les interludes garantissent l’accord des discordants dans une cohésion sonore qui témoigne de proportions musicales. Dans ce livre, nous proposons une nouvelle lecture de la culture juridique et politique des Hellènes ainsi que les perspectives qu’elle ouvre pour la postmodernité, autour des chapitres suivants : a. Le cosmos chez les Hellènes. Le droit en éthique et politique ; b. Le pathétique philosophique et tragique dans la musique de la physis ; c. Les harmoniques du dikaion physikon (droit naturel) et les notes de la dialectique dans l’univers de la justice politique ; d. L’existence et la personne avec les prétendants de la justice dans les interludes de l’Être ; e. Les interludes de la justice personnaliste moderne ; f. Les revenants grecs dans les visions d’aujourd’hui. (shrink)

One characteristic of tradeable emission permits is that efficiency and justice considerations can be separated. While Pareto optimality is an accepted efficiency principle, there is not a consensus on a 'best' equity principle. In this article, conventional justice principles are used to evaluate alternative allocation rules for tradeable CO₂ permits, and a distribution proportional to population is recommended. Arguments against the population rule are discussed, especially those pertaining to political feasibility. While justice and political feasibility may (...) indeed contrast, it still may be possible to emphasise the population rule in the future. (shrink)