Rawls offers three arguments for the priority of liberty in Theory, two of which share a common error: the belief that once we have shown the instrumental value of the basic liberties for some essential purpose (e.g., securing self-respect), we have automatically shown the reason for their lexical priority. The third argument, however, does not share this error and can be reconstructed along Kantian lines: beginning with the Kantian conception of autonomy endorsed by Rawls in section 40 of Theory, we (...) can explain our highest-order interest in rationality, justify the lexical priority of all basic liberties, and reinterpret Rawls’ threshold condition for the application of the priority of liberty. Perhaps unsurprisingly, this Kantian reconstruction will not work within the radically different framework of Political Liberalism. (shrink)

Protestant Christian ethicist Timothy Jackson and secular feminist philosopher Eva Feder Kittay each explore the relationship between love or care and justice through the lens of human dependency. Jackson sharply prioritizes agape over justice, whereas Kittay articulates a more complex and integrated understanding of the relationship of care and distributive justice. An account of Christian love and its relation to justice must account for the gratuity, mutuality, and reciprocity that pervade human existence. Such an account must integrate provision for another's (...) basic needs, a feature of agape, with a distributive justice that fairly allocates the material prerequisites of care and the burden of caring labor. Kittay's treatment of care and justice is more adequate to the realities of human embodiment and the social organization of care than Jackson's, but neither offers a fully adequate ground for the moral personhood of all human beings, including deeply dependent persons. (shrink)

This paper argues that, with modification, Rawls's social contract theory can produce principles of distributive justice applying to the severely disabled. It is a response to critics who claim that Rawls's assumption that the parties in the original position represent fully cooperating citizens excludes the disabled from the social contract. I propose that this idealizing assumption should be dropped at the constitutional stage of the contract where the parties decide on a social minimum. Knowing that they might not be fully (...) capable of social cooperation, the parties will choose a social minimum that is as high and comprehensive as is compatible with the difference principle. This will ensure that the disabled have an adequate income. (shrink)

Discounting future costs and benefits is often defended on the ground that our descendants will be richer. Simply to treat the future as better off, however, is to commit an ecological fallacy. Even if our descendants are better off when we average across climate change scenarios, this cannot justify discounting costs and benefits in possible states of the world in which they are not. Giving due weight to catastrophe scenarios requires energetic action against climate change.

The aim of this paper is to argue that the utilitarian principle of criminalization is sounder than its poor reputation suggests. The paper begins by describing three possible answers to the research question: To what extent should the consequences of criminalization matter morally in a theory of criminalization? Hereafter I explain why I shall discuss only two of these answers. Then follows a detailed and critical specification of UPC. Furthermore, I will argue why criticisms of UPC made by philosophers such (...) as Douglas Husak and Victor Tadros in their recent work are far from convincing. Finally, I will present a positive reason for accepting UPC as a principle of criminalization, namely: that UPC is consistent with what I call the Counterproductive Criminalization Principle, while non-consequentialist theories of criminalization are not. (shrink)

The capability approach assigns a central role to the contexts within which social interactions take place, which make individual liberty achievable. However, an auxiliary concept is necessary to explain the contexts of collective action more accurately. In this paper I shall present Taylor’s concept of irreducibly social goods as a supplement to the capability approach. I shall also introduce the concept of hermeneutics as a strategy suitable for evaluating which capabilities are to be considered valid, as an alternative to aggregative (...) methodologies. This conceptual development at the core of the capability approach demands to be framed by a normative criterion that enables us to distinguish between emancipatory and conservative contexts of social action; for that purpose I make use of the subject idealization that Honneth and Anderson present. (shrink)

One of the most prevalent rationales for public healthcare policies is a human right to healthcare. Governments are the typical duty-bearers, but they differ vastly in their capacity to help those vulnerable to serious health problems and those with severe disabilities. A right to healthcare is out of the reach of many developing economies that struggle to provide the most basic services to their citizens. If human rights to provision of such goods exist, then governments would be violating rights without (...) doing anything wrong. I argue that such variable ability to provide healthcare depends not only on financial resources, but on institutional capacity, and that the latter represents a more fundamental challenge to the existence of a human right to healthcare than previously recognized. This challenge does not imply that government has no obligations to protect and improve the health of their citizens, but that it is best to think of such obligations as generated by conventional rights, namely rights arising from local legal and social conventions, which require governments to pursue health-related moral goals such as reducing suffering, closing opportunity gaps for the disadvantaged, and preventing the spread of contagious diseases. We need not think of such moral goals in terms of human rights. (shrink)

Algorithmic fairness is a new interdisciplinary field of study focused on how to measure whether a process, or algorithm, may unintentionally produce unfair outcomes, as well as whether or how the potential unfairness of such processes can be mitigated. Statistical discrimination describes a set of informational issues that can induce rational (i.e., Bayesian) decision-making to lead to unfair outcomes even in the absence of discriminatory intent. In this article, we provide overviews of these two related literatures and draw connections between (...) them. The comparison illustrates both the conflict between rationality and fairness and the importance of endogeneity (e.g., “rational expectations” and “self-fulfilling prophecies”) in defining and pursuing fairness. Taken in concert, we argue that the two traditions suggest a value for considering new fairness notions that explicitly account for how the individual characteristics an algorithm intends to measure may change in response to the algorithm. (shrink)

We reexamine some of the classic problems connected with the use of cardinal utility functions in decision theory, and discuss Patrick Suppes's contributions to this field in light of a reinterpretation we propose for these problems. We analytically decompose the doctrine of ordinalism, which only accepts ordinal utility functions, and distinguish between several doctrines of cardinalism, depending on what components of ordinalism they specifically reject. We identify Suppes's doctrine with the major deviation from ordinalism that conceives of utility functions as (...) representing preference differences, while being non- etheless empirically related to choices. We highlight the originality, promises and limits of this choice-based cardinalism. (shrink)

Innovations in science and technology are often the source of public concern, but few have generated debates as intense and at the same time with such a popular fascination as those surrounding genetic technologies. Unequal access to preimplantation diagnosis could give some individuals the opportunity to select children with more advantageous predispositions.

John Rawls’s use of the “fully cooperating assumption” has been criticized for hindering attempts to address the needs of disabled individuals, or non-cooperators. In response, philosophers sympathetic to Rawls’s project have extended his theory. I assess one such extension by Cynthia Stark, that proposes dropping Rawls’s assumption in the constitutional stage (of his four-stage sequence), and address the needs of non-cooperators via the social minimum. I defend Stark’s proposal against criticisms by Sophia Wong, Christie Hartley, and Elizabeth Edenberg and Marilyn (...) Friedman. Nevertheless, I argue that Stark’s proposal is crucially incomplete. Her formulation of the social minimum lacks accompanying criteria with which the adequacy of the provisions for non-cooperators may be assessed. Despite initial appearances, Stark’s proposal does not fully address the needs of non-cooperators. I conclude by considering two payoffs of identifying this lack of criteria. (shrink)

Palliative care serves both as an integrated part of treatment and as a last effort to care for those we cannot cure. The extent to which palliative care should be provided and our reasons for doing so have been curiously overlooked in the debate about distributive justice in health and healthcare. We argue that one prominent approach, the Rawlsian approach developed by Norman Daniels, is unable to provide such reasons and such care. This is because of a central feature in (...) Daniels' account, namely that care should be provided to restore people's opportunities. Daniels' view is both unable to provide pain relief to those who need it as a supplement to treatment and, without justice-based reasons to provide palliative care to those whose opportunities cannot be restored. We conclude that this makes Daniels' framework much less attractive. (shrink)

This year marks the centenary of John Rawls's birth and the fiftieth anniversary of the publication of A Theory of Justice. The influence of Rawls's landmark book on the general fields of moral and political philosophy is undisputed and well-documented. It has also left a significant imprint on debates surrounding health policy, health care, and health inequalities. This article traces the changing ways in which Rawls's theory influenced debates about justice in health over the last five decades. Just as Rawls's (...) ideas have shaped debates about health, however, these debates can help us critically appraise the theory and its limitations. In that spirit, the article sketches three areas where a focus on health reveals challenges to the Rawlsian framework: the issue of priority setting among competing goods, the theory's egalitarian commitments, and its focus on the distribution of goods. (shrink)

John Rawls argues that it is possible to describe a suitably defined initial situation from which to form reliable judgements about justice. In this initial situation, rational persons are deprived of information that is . It is rational, Rawls argues, for persons choosing principles of justice from this standpoint to be guided by the maximin rule. Critics, however, argue that (i) the maximin rule is not the appropriate decision rule for Rawls's choice position; (ii) the maximin argument relies upon an (...) imprecise account of the satisfactory minimum to be secured under the maximin rule; or that (iii) Rawls relies upon unrealistic assumptions about diminishing marginal value. These critics, I will suggest, argue from a number of assumptions that are confused or false. The satisfactory minimum that choosers in the original position seek to achieve is not a minimum level of primary goods, nor is the satisfactory minimum sought under the maximin rule supplied by the difference principle. I will argue that the maximin argument is more robust than has generally been recognized and that this argument performs a number of important functions in clarifying the nature and implications of Rawls's argument for justice as fairness. (shrink)

Abstract:This essay aims to bring two important lines of inquiry and criticism together. It first lays out an institutionally enriched account of what a just world economic order will look like. That account prescribes, via the requisites to that mechanism which most directly instantiates the account, “three realms of equal treatment and market completion”—the global products, services, and labor markets; the global investment/financial markets; and the global preparticipation opportunity allocation. The essay then suggests how, with minimal if any departure from (...) familiar canons of traditional international legal mandate interpretation, each of the Bretton Woods institutions—particularly the GATT/WTO and the IMF—can be viewed at least in part as charged with the task of fostering equal treatment and ultimate market completion within one of those three realms. The piece then argues that one of the institutions in particular—the World Bank—has, for reasons of at best negligent and at worst willful injustice on the part of influential state actors in the world community, fallen farthest short in pursuit of what should be viewed as its proper mandate. The article accordingly concludes that a fuller empowerment of the Bank to effect its ideal mission will press the Bretton Woods system more nearly into ethical balance, and with it the world into justice; and that full empowerment of the GATT/WTO and IMF should be partly conditioned upon the fuller empowerment of the Bank. (shrink)

Many critics of utilitarianism claim that we should reject interpersonal aggregation because aggregative principles do not take the separateness of persons seriously. In this article, I will reject this claim. I will first elucidate the theoretical structure of aggregation. I will then consider various interpretations of the notion of the separateness of persons and clarify what exactly those critics are trying to reject by appealing to the notion of the separateness of persons. I will argue that none of these interpretations (...) can serve as the ground for rejecting aggregation. (shrink)

The tenuous claims of cost-benefit analysis to guide policy so as to promote welfare turn on measuring welfare by preference satisfaction and taking willingness-to-pay to indicate preferences. Yet it is obvious that people's preferences are not always self-interested and that false beliefs may lead people to prefer what is worse for them even when people are self-interested. So welfare is not preference satisfaction, and hence it appears that cost-benefit analysis and welfare economics in general rely on a mistaken theory of (...) well-being. This essay explores the difficulties, criticizes standard defences of welfare economics, and then offers a new partial defence that maintains that welfare economics is independent of any philosophical theory of well-being. Welfare economics requires nothing more than anevidentialconnection between preference and welfare: in circumstances in which people are concerned with their own interests and reasonably good judges of what will serve their interests, their preferences will be reliable indicators of what is good for them. (shrink)

John Rawls's A Theory of Justice has reshaped liberal political theory, but what fruitful arguments does it generate today, fifty years after its publication? To show Theory's productive contempora...

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective (...) equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. In the first part of this enquiry (Eng 2014a), I raised the issue of the reflexivity of justification and questioned whether the reflexive challenge can be met within the framework of A Theory of Justice. In the second part (Eng 2014b), I outlined a Kantian approach that represents a paradigmatic alternative to Rawls. In this third and final part, I shall argue that Rawls's reflective equilibrium cannot justify the choice of itself and that in the broader perspective thus necessitated, we cannot escape the metaphysical issues integral to the Kantian approach. (shrink)

This paper addresses two ways in which scarcity in health care turns up and three ways in which this dual condition of scarcity can be approached. The first approach is the economic approach, which focuses on the causes of cost-increase in health care and on developing various mechanisms of rationing and priority-setting in health care. The second approach is the justice approach, which interprets scarcity as one of the Humean ‹Circumstances of Justice.’ Whereas these approaches interpret scarcity as a given (...) fact, the third approach casts doubt on this interpretation. Rather, it interprets scarcity as a social, anthropological, and technologically induced construction of Modernity. This paper supports the theories of Hans Achterhuis, Ivan Illich, and Nicholas Xenos but also further elaborates their views with regard to health care by offering an approach to scarcity that interprets it as an economic translation of finitude. I argue that this approach, which entails a contemporary revaluation of the ancient Socratic attitude on human life and finitude, will be better able to deal with the pressing contemporary issues of setting limits on health care because it mitigates contemporary health care’s tendency toward infinity in meeting – and creating – health care needs. (shrink)

Selon Rawls, le PD permet de regarder les différences de talents comme un « atout commun ». Le libertarien Nozick y a vu l’aveu par Rawls que sa société se rend propriétaire de nos personnes, faites de nos talents propres. C’est un sophisme : seule la distribution des dons peut être vue comme un bien commun, fournissant une palette de complémentarités possibles qui est un atout commun (voir Smith sur la division du travail, comme le note Arrow). Arrow a peut-être (...) hésité sur ce point, mais il a finalement opté, comme Rawls et Nozick, pour l’idée que nous possédons nos talents, à ceci près que nous ne pouvons les développer que dans un cadre social qui rend légitime (contra Nozick) que l’impôt nous reprenne une partie de nos bénéfices pour aider les plus démunis à sortir de leur misère. Le PD éloigne de la pure méritocratie. Via Pascal, cité par Arrow, on en revient à l’importance de la notion de personne dans toute approche non utilitariste, plaidant pour la coopération entre économie et philosophie, par exemple pour généraliser le PD à plus de deux classes, si c’est possible sans entamer la souhaitable simplicité cognitive des principes de justice, ni détruire le système des incitations. Classification JEL : I13. (shrink)

Perhaps the most salient feature of Rawls's theory of justice which at once attracts supporters and repels critics is its apparent egalitarian conclusion as to how economic goods are to be distributed. Indeed, many of Rawls's sympathizers may find this result intuitively appealing, and regard it as Rawls's enduring contribution to the topic of economic justice, despite technical deficiencies in Rawls's contractarian, decision-theoretic argument for it which occupy the bulk of the critical literature. Rawls himself, having proposed a “coherence” theory (...) of justification in metaethics, must regard the claim that his distributive criterion “is a strongly egalitarian conception” as independently a part of the overarching moral argument. The alleged egalitarian impact of Rawls's theory is crucial again in normative ethics where Rawls is thought to have developed a major counter-theory to utilitarianism, one of the most popular criticisms of which has been its alleged inadequacy in handling questions of distributive justice. Utilitarians can argue, however, as Brandt recently has, that the diminishing marginal utility of money, along with ignorance of income-welfare curves, would require a utility-maximizing distribution to be substantially egalitarian. The challenge is therefore for Rawls to show that his theory yields an ethically preferable degree of equality. (shrink)