The problem area of distributive justice includes at its core questions about what ought to be owned, how it can be owned and who ought to own it. A fundamental assumption behind recent attempts to address these questions is that the power to shape the property institutions of a society lies entirely in that society's laws. This view, I argue, is mistaken. In this dissertation I provide an account of how property institutions are related to other social (...) practices in a society. A consequence of this account is that property law does not solely determine what property looks like in a society. ;The analysis begins with the observation of Enlightenment-era natural rights theorists that property is, first and foremost, a conventional social norm. I then turn to modern developments in game theory and social psychology to propose a novel account of how conventional social norms guide agents. On this account, a norm guides an agent by influencing their practical reasoning in one of two ways: either rationally, by generating a belief that behavior in those circumstances is required by that norm, or sub-rationally, by structuring the agent's practical reasoning, without the agent being aware of it, in such a way that ensures the formation of intentions to act in a manner required by the norm. This second form of norm guidance, which I call 'passive norm guidance', provides grounds for the claim that property norms can exist and function independently of recognition by the law. I go on to show how the independent existence of property norms can support a robust natural law account of property rights according to which property rights exist independent of recognition by the law. The dissertation ends by show how this account, while radical, is also consistent with the dominant Twentieth Century analytic jurisprudence accounts of property. (shrink)

A private property right is a collection of particular rights that relate to the control of an object. The ground for such moral rights rests on the value of project pursuit. It does so because the individual ownership of particular objects is intimately related to the formation and application of a coherent set of projects that are the major parts of a self-shaped life. Problems arise in explaining how unowned property is appropriated. Unilateral acts with regard to (...) an object, e.g., mixing in one’s labor into it, probably don’t ground particular rights to private property. Nor do bilateral contracts since a stable pre-institutional contract with regard to appropriation is not likely to form. However, a conventional method of appropriation can allow for such appropriation while at the same time preserving the pre-institutional nature of such rights. This theory can also account for a person’s property rights in her own body. However, the value of project formation requires that persons have at least some private property that is to serve as the object of their projects. These positive rights to property undermine the libertarian claim that all non-commitment-based rights are negative. However, a further empirical argument is needed in order to justify protecting these positive moral rights to private property by positive legal rights. (shrink)

This dissertation defends a “non-ideal theory” of justice: a systematic theory of how to respond justly to injustice. Chapter 1 argues that contemporary political philosophy lacks a non-ideal theory of justice, and defends a variation of John Rawls’ famous original position – a Non-Ideal Original Position – as a method with which to construct such a theory. Chapter 1 then uses the Non-Ideal Original Position to argue for a Fundamental Principle of Non-Ideal Theory: a principle (...) that requires injustices to be dealt with in whichever way will best satisfy the preferences of all relevant individuals, provided those individuals are all rational, adequately informed, broadly moral, and accept the correct “ideal theory” of fully just conditions. Chapter 2 then argues for the Principle of Application – an epistemic principle that represents the Fundamental Principle’s satisfaction conditions in terms of the aims of actual or hypothetical reformist groups. Chapters 3-5 then use these two principles to argue for substantive views regarding global/international justice. Chapter 3 argues that the two principles establish a higher-order human right for all other human rights to promoted and protected in accordance with the two principles of non-ideal theory. Chapter 4 argues that the two principles defeasibly require the international community to tolerate unjust societies, provided those societies respect the most basic rights of individuals. Finally, Chapter 5 argues that the two principles imply a duty of the international community to ameliorate the most severe forms of global poverty, as well as a duty to pursue “fair trade” in international economics. (shrink)

David Hume and Simone de Beauvoir agree that human beings have a great deal of control over their moral and political lives, which is well captured in Hume's assertion that "mankind is an inventive species". But Hume argues that the most important thing needed to settle our social lives and determine justice is the agreement on rules of property, while Beauvoir thinks that the rules of property will never be enough to establish the best life, but rather that (...) we should be focusing on freedom. In this article we reconstruct Hume's argument for property, then develop a Beauvoirian critique of Hume that brings out the weakness of any theory of property that does not prevent inequalities of property from interfering with freedom. And then we give the last word to a Humean response to Beauvoir that would insist that there can be no freedom but only violence without rules of property, which she ignores. Both thinkers appeal to humanity as an overriding goal, and perhaps that is the way to reconcile the two: we need both property and freedom to achieve our humanity. (shrink)

The Oregon Basic Health Services Act of 1989 seeks to establish universal access to basic medical care for all currently uninsured Oregon residents. To control the increasing cost of medical care, the Oregon plan will restrict funding according to a priority list of medical interventions. The basic level of medical care provided to residents with incomes below the federal poverty line will vary according to the funds made available by the Oregon legislature. A rationing plan such as Oregon's which potentially (...) excludes medically necessary procedures from the basic level of health care may be just, for the right to publically-sponsored medical care is restricted by opposing rights of private property. However, the moral acceptability of the Oregon plan cannot be determined in the absence of knowing the level of resources to be provided. Finally, Oregon to date has failed to include the individuals being rationed in discussions as to how the scarce resources are to be distributed. (shrink)

In a wide-ranging inquiry Richard W. Miller provides new resources for coping with the most troubling types of moral conflict: disagreements in moral conviction, conflicting interests, and the tension between conscience and desires. Drawing on most fields in philosophy and the social sciences, including his previous work in the philosophy of science, he presents an account of our access to moral truth, and, within this framework, develops a theory of justice and an assessment of the role of morality in (...) rational choice. In Miller's view, we are often in a position to claim that our moral judgments are true descriptions of moral facts. But others, relying on contrary ways of moral learning, would reject truths that we are in a position to assert, in dissent that does not depend on irrationality or ignorance of relevant evidence or arguments. With this mixed verdict on "moral realism," Miller challenges many received views of rationality, scientific method, and the relation between moral belief and moral choice. In his discussion of justice, Miller defends the adequacy, for modern political choices, of a widely shared demand that institutions be freely and rationally acceptable to all. Drawing on social research and economic theories, he argues that this demand has dramatically egalitarian consequences, even though it is a premise of liberals and conservatives alike. In the final chapters, Miller investigates the role and limits of morality in the choice of conduct, arguing for new perspectives on reason and impartiality. Originally published in 1992. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

In my 1990 work – Marxism, Morality, and Social Justice – I argued for four modifications of Rawls’s principles of social justice and rendered a modified version of his theory in four principles, the first of which is the Basic Rights Principle demanding the protection of people’s security and subsistence rights. In both his Political Liberalism and Justice as Fairness Rawls explicitly refers to my version of his theory, clearly accepting three of my four proposed modifications but rejecting (...) the fourth ‐‐ the demand for social and economic democracy – on grounds that it automatically justifies socialism as opposed to capitalism. I argue, contrary to Rawls, that it is not true that this demand automatically picks socialism as the preferablesocioeconomic/political system and that a Social and Economic Democracy Principle demanding workplace and neighborhood democracy is officially neutral between these two systems … although plausible empirical assumptions may, indeed, favor the former. I then significantly elaborate my second version of Rawls’s theory of social justice which is composed of the following principles arranged in a very strong order of priority : Basic Rights Principle, Equal Basic Liberties Principle, Fair Equality of Opportunity Principle, Modified Difference Principle, and Social and Economic DemocracyPrinciple. I argue that this elaborated version of the theory – which I call “Justice as Fair Rights” – is better than either Rawls’s original theory or my previous versions of it. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:74. RULE-UTILITARIANISM AND HUME'S THEORY OF JUSTICE One of the striking features of Hume's theory of justice is the narrowness of the range of judgments it is designed to illumine. For Hume the paradigms of judgments of justice are judgments about particular actions, not judgments about laws or institutions or states of affairs. Moreover, the characterization of actions as just or unjust is possible according to Hume (...) only in a certain kind of legal context - namely when questions arise about the conformity of conduct to a certain class of legal rules, those which comprise the law of property. In such contexts, actions are said to be just if they are in accordance with property rules and unjust if they are contrary to them. Of particular interest is the exclusion of judgments about the law - and in particular judgments about property rules - from the class of judgments of justice. Hume recognizes, of course, that we often have occasion to evaluate rules of law, including the rules which make up the law of property. When such judgments have to be made, however, it is never their justice or injustice which is in question for Hume. The fact that he often refers to the rules of property as "rules of justice" may seem to be inconsistent with this view, but it is not. When Hume refers to property rules in this way, it is not because he wishes to signify that the rules themselves satisfy some principle of justice, but rather because he conceives of them as embodying our criteria for the making of judgments about the justice of particular acts. Property rules cannot be viewed as "rules of justice" in this sense without satisfying some supralegal standard of acceptability. But the standard in quesrtion is social utility, not justice. Property rules qualify as "rules of justice", then, not because they are just but rather because they serve the public interest. Like some contemporary rule-utilitarians, Hume expressly disallows the question whether particular acts of 75. justice are socially useful. Or rather, to be more accurate, he claims that the disutility of particular acts sanctioned by property law counts neither against their being regarded as "acts of justice" nor against recognition of the obligation to perform them. Neither the characterisation of particular actions as "just" nor the stringency of the obligation to perform them is affected by the discovery that they might have to be said not to be in the public interest if attention were to be concentrated on the special circumstances of their performance. The reason is that it is a mistake, Hume thinks, for such acts to be viewed in isolation from other similar acts. Rather they must be seen as forming part of a scheme or system - a scheme or system which, taken in its entirety, serves the public interest. Hume's theory of justice thus embodies an unusually neat distinction between questions of justice and questions of social utility. When questions of justice are allowed to arise which is when the justice of particular acts is to be determined - questions of social utility do not arise. And when questions of social utility are allowed to arise - as they do when property rules have to be evaluated - questions of justice do not arise. Despite the sharp distinction he draws between justice and utility, Hume's theory of justice is clearly a utilitarian one. It is indeed a veritable prototype of the kind of theory now dubbed "rule-utilitarian". As such it has obvious attractions for would-be utilitarians, if it can be made to work. It would enable utilitarians to offer an account of judgments of justice in terms of rules enjoying the status of secondary principles of morality. Justice judgments could be represented as a special sub-class of moral judgments and the principles regulating them as subordinate to, and derivable from, the principle of utility. The vexed question of the relation between justice and utility would thereby be resolved without challenge to the assumption that they are different values and also without 76. abandonment of the claim that the principle of utility is the only underivative moral principle. By contrast, utilitarians for whom the... (shrink)

In a wide-ranging inquiry Richard W. Miller provides new resources for coping with the most troubling types of moral conflict: disagreements in moral conviction, conflicting interests, and the tension between conscience and desires. Drawing on most fields in philosophy and the social sciences, including his previous work in the philosophy of science, he presents an account of our access to moral truth, and, within this framework, develops a theory of justice and an assessment of the role of morality in (...) rational choice. In Miller's view, we are often in a position to claim that our moral judgments are true descriptions of moral facts. But others, relying on contrary ways of moral learning, would reject truths that we are in a position to assert, in dissent that does not depend on irrationality or ignorance of relevant evidence or arguments. With this mixed verdict on moral realism, Miller challenges many received views of rationality, scientific method, and the relation between moral belief and moral choice. In his discussion of justice, Miller defends the adequacy, for modern political choices, of a widely shared demand that institutions be freely and rationally acceptable to all. Drawing on social research and economic theories, he argues that this demand has dramatically egalitarian consequences, even though it is a premise of liberals and conservatives alike. In the final chapters, Miller investigates the role and limits of morality in the choice of conduct, arguing for new perspectives on reason and impartiality. (shrink)

This chapter contains sections titled: Property and Subjugation The Limits of Property The Marxian Theory of the Conditions of Liberty Inside the Marxian‐Liberal Original Position The Difference Principle as a Historical Principle of Justice.

In lieu of an abstract, here is a brief excerpt of the content:The Journal of Aesthetic Education 38.3 (2004) 19-35 [Access article in PDF] Moderate Formalism As a Theory of the Aesthetic Glenn Parsons Art history and art criticism explore, classify, and critique artworks from a number of perspectives. Their cultural, political, and moral significance are all of interest in this regard. This variety of perspectives notwithstanding, one way of considering artworks retains a central position for these disciplines. Despite (...) perennial shifting in conceptions of the purpose and nature of art, the aesthetic appreciation of art remains at the center of our practices for classifying and evaluating it. Without claiming that the aesthetic dimension of art is the only proper focus of its appreciation or that the aesthetic is a very clearly understood notion, we may say that some degree of contact with the aesthetic is what makes our consideration of an artwork an appreciation of it as art, rather than as historical artifact, manifestation of cultural ideology, and so on.In light of the central position of aesthetic appreciation in art history and criticism, an important concern regarding aesthetic education is what sort of knowledge, if any, is required for appropriate aesthetic appreciation of an artwork. Is knowledge of the historical context of an artwork required for appropriate aesthetic appreciation of it, or is its historical dimension a separate matter, perhaps worthy of appreciation in its own right but not relevant to the appreciation of the artistic achievement of the work? Virtually all modern theories of the aesthetic agree that in order to appreciate an artwork aesthetically, we need to perceive attentively certain of its perceptual properties, such as its shape and color. They differ, however, on whether such attentive perception is sufficient for appropriate aesthetic appreciation. On the one hand we have cognitivist views, which assert that, in addition to this sort of attentive perception, certain kinds of knowledge about the object of appreciation are required for appropriate aesthetic appreciation. On the other hand we have non-cognitivist views, which deny that such knowledge is necessary for appropriate aesthetic appreciation. According to the latter, the aesthetic qualities of an artwork, such as its gracefulness, [End Page 19] are formal in the sense that they depend only upon those perceptual properties, such as color, shape, and size, that constitute the "sensory surface" of the work.1 These properties, apparent to the attentive observer, are the only properties of the object to which one need attend in order to appreciate its gracefulness. Other properties of the painting, such as its depicting German peasants or having been rendered by a communist, are irrelevant to its aesthetic qualities, and knowledge about them is not required for its appropriate aesthetic appreciation. Today this non-cognitivist position is generally called formalism.2In the twentieth century, philosophical aesthetics largely rejected such views in favor of models of aesthetic appreciation with a richer cognitive element. This movement away from formalism has a number of dimensions, including the efforts of feminists to establish the aesthetic value of activist art, the desire to make sense of well-established practices of art appreciation, a growing awareness of the role that beliefs play in our aesthetic responses, the effort to do justice to the aesthetic character of the natural environment, and conceptual difficulties internal to formalism itself.3 Recently, however, some philosophers have revived the spirit, if not the letter, of formalism. Acknowledging widespread criticism of early formalists, such as Clive Bell, they concede that these theorists overstated the case when they claimed that all aesthetic qualities depend on nothing beyond the sensory surface of the object.4 The new formalists, in contrast, claim only that some aesthetic qualities are of this character. They call this doctrine moderate formalism, in contrast to the extreme formalism defended by earlier formalists.5By adopting this more modest position, moderate formalists can accommodate many of the criticisms that led to the decline of extreme formalism. However, if it turns out that only a handful of relatively unimportant aesthetic qualities are formal in nature, then moderate formalism would hardly make an impressively "formalist" theory of the... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Journal of Aesthetic Education 38.3 (2004) 19-35 [Access article in PDF] Moderate Formalism As a Theory of the Aesthetic Glenn Parsons Art history and art criticism explore, classify, and critique artworks from a number of perspectives. Their cultural, political, and moral significance are all of interest in this regard. This variety of perspectives notwithstanding, one way of considering artworks retains a central position for these disciplines. Despite (...) perennial shifting in conceptions of the purpose and nature of art, the aesthetic appreciation of art remains at the center of our practices for classifying and evaluating it. Without claiming that the aesthetic dimension of art is the only proper focus of its appreciation or that the aesthetic is a very clearly understood notion, we may say that some degree of contact with the aesthetic is what makes our consideration of an artwork an appreciation of it as art, rather than as historical artifact, manifestation of cultural ideology, and so on.In light of the central position of aesthetic appreciation in art history and criticism, an important concern regarding aesthetic education is what sort of knowledge, if any, is required for appropriate aesthetic appreciation of an artwork. Is knowledge of the historical context of an artwork required for appropriate aesthetic appreciation of it, or is its historical dimension a separate matter, perhaps worthy of appreciation in its own right but not relevant to the appreciation of the artistic achievement of the work? Virtually all modern theories of the aesthetic agree that in order to appreciate an artwork aesthetically, we need to perceive attentively certain of its perceptual properties, such as its shape and color. They differ, however, on whether such attentive perception is sufficient for appropriate aesthetic appreciation. On the one hand we have cognitivist views, which assert that, in addition to this sort of attentive perception, certain kinds of knowledge about the object of appreciation are required for appropriate aesthetic appreciation. On the other hand we have non-cognitivist views, which deny that such knowledge is necessary for appropriate aesthetic appreciation. According to the latter, the aesthetic qualities of an artwork, such as its gracefulness, [End Page 19] are formal in the sense that they depend only upon those perceptual properties, such as color, shape, and size, that constitute the "sensory surface" of the work.1 These properties, apparent to the attentive observer, are the only properties of the object to which one need attend in order to appreciate its gracefulness. Other properties of the painting, such as its depicting German peasants or having been rendered by a communist, are irrelevant to its aesthetic qualities, and knowledge about them is not required for its appropriate aesthetic appreciation. Today this non-cognitivist position is generally called formalism.2In the twentieth century, philosophical aesthetics largely rejected such views in favor of models of aesthetic appreciation with a richer cognitive element. This movement away from formalism has a number of dimensions, including the efforts of feminists to establish the aesthetic value of activist art, the desire to make sense of well-established practices of art appreciation, a growing awareness of the role that beliefs play in our aesthetic responses, the effort to do justice to the aesthetic character of the natural environment, and conceptual difficulties internal to formalism itself.3 Recently, however, some philosophers have revived the spirit, if not the letter, of formalism. Acknowledging widespread criticism of early formalists, such as Clive Bell, they concede that these theorists overstated the case when they claimed that all aesthetic qualities depend on nothing beyond the sensory surface of the object.4 The new formalists, in contrast, claim only that some aesthetic qualities are of this character. They call this doctrine moderate formalism, in contrast to the extreme formalism defended by earlier formalists.5By adopting this more modest position, moderate formalists can accommodate many of the criticisms that led to the decline of extreme formalism. However, if it turns out that only a handful of relatively unimportant aesthetic qualities are formal in nature, then moderate formalism would hardly make an impressively "formalist" theory of the... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Journal of Aesthetic Education 38.3 (2004) 19-35 [Access article in PDF] Moderate Formalism As a Theory of the Aesthetic Glenn Parsons Art history and art criticism explore, classify, and critique artworks from a number of perspectives. Their cultural, political, and moral significance are all of interest in this regard. This variety of perspectives notwithstanding, one way of considering artworks retains a central position for these disciplines. Despite (...) perennial shifting in conceptions of the purpose and nature of art, the aesthetic appreciation of art remains at the center of our practices for classifying and evaluating it. Without claiming that the aesthetic dimension of art is the only proper focus of its appreciation or that the aesthetic is a very clearly understood notion, we may say that some degree of contact with the aesthetic is what makes our consideration of an artwork an appreciation of it as art, rather than as historical artifact, manifestation of cultural ideology, and so on.In light of the central position of aesthetic appreciation in art history and criticism, an important concern regarding aesthetic education is what sort of knowledge, if any, is required for appropriate aesthetic appreciation of an artwork. Is knowledge of the historical context of an artwork required for appropriate aesthetic appreciation of it, or is its historical dimension a separate matter, perhaps worthy of appreciation in its own right but not relevant to the appreciation of the artistic achievement of the work? Virtually all modern theories of the aesthetic agree that in order to appreciate an artwork aesthetically, we need to perceive attentively certain of its perceptual properties, such as its shape and color. They differ, however, on whether such attentive perception is sufficient for appropriate aesthetic appreciation. On the one hand we have cognitivist views, which assert that, in addition to this sort of attentive perception, certain kinds of knowledge about the object of appreciation are required for appropriate aesthetic appreciation. On the other hand we have non-cognitivist views, which deny that such knowledge is necessary for appropriate aesthetic appreciation. According to the latter, the aesthetic qualities of an artwork, such as its gracefulness, [End Page 19] are formal in the sense that they depend only upon those perceptual properties, such as color, shape, and size, that constitute the "sensory surface" of the work.1 These properties, apparent to the attentive observer, are the only properties of the object to which one need attend in order to appreciate its gracefulness. Other properties of the painting, such as its depicting German peasants or having been rendered by a communist, are irrelevant to its aesthetic qualities, and knowledge about them is not required for its appropriate aesthetic appreciation. Today this non-cognitivist position is generally called formalism.2In the twentieth century, philosophical aesthetics largely rejected such views in favor of models of aesthetic appreciation with a richer cognitive element. This movement away from formalism has a number of dimensions, including the efforts of feminists to establish the aesthetic value of activist art, the desire to make sense of well-established practices of art appreciation, a growing awareness of the role that beliefs play in our aesthetic responses, the effort to do justice to the aesthetic character of the natural environment, and conceptual difficulties internal to formalism itself.3 Recently, however, some philosophers have revived the spirit, if not the letter, of formalism. Acknowledging widespread criticism of early formalists, such as Clive Bell, they concede that these theorists overstated the case when they claimed that all aesthetic qualities depend on nothing beyond the sensory surface of the object.4 The new formalists, in contrast, claim only that some aesthetic qualities are of this character. They call this doctrine moderate formalism, in contrast to the extreme formalism defended by earlier formalists.5By adopting this more modest position, moderate formalists can accommodate many of the criticisms that led to the decline of extreme formalism. However, if it turns out that only a handful of relatively unimportant aesthetic qualities are formal in nature, then moderate formalism would hardly make an impressively "formalist" theory of the... (shrink)

This chapter argues that the taking of land should be theorized differently from other issues of corrective justice, not only because land is not moveable, and so cannot easily be distributed and redistributed and restored to the original occupant, but because morally significant relationships between people and place are likely to develop over time, and these affect the appropriate corrective justice remedy. Through analyzing these relationships, different types of wrongs involved in the taking of land can be identified, some (...) of which apply to individuals and some to groups. The argument is pursued through three different kinds of place-related wrongs: violating rights of residency, violating right of occupancy, and violating rights to territory. The different wrongs suggest different potential remedies and not all expulsions involve all three of them. (shrink)

This article investigates one of the major problems of modern political philosophy – the problem of justice in its fundamentally important methodological measurement in the Context of Ukraine. It’s consistently shown that justice belongs to a prominent place among the moral and social values: particularly its people owe to each other, because it is the scale, which measured freedom, equality and human rights.For this purpose it is analyzed the relationship and difference of methodological changes in grasping the concept of justice (...) in the works of K-O-Apel, J.Habermas, O.Höffe, R.Forst. It was found that Habermas interprets a new essence of solidarity and justice as normative principles of a democratic state where the requirement of respect for the dignity of each based on the acceptance of the inviolability of his body, life and property. It is proved that O.Höffe draws attention to the need of fundamental changes in the understanding of social justice, emphasizing the pre-modern, paternalistic sense of distributive models. Іn the writings of R.Frost social justice gain a political dimension, just as political or social relationship can exist only in case of their full justification, respect for human dignity. In the latest theories of justice is said that the victim of injustice is firstly the one who is ignored both in the process of manufacturing and distribution of public goods. To conclude: only the justice of exchange permits us to solve the immediate, practical dilemma: should one hand over a part of one’s freedom to social, state, authoritative structures, or be independent of them and be unable to resort to their assistance in case of emergency. People, perforce, mutually abandon part of their freedom as legal agents in order to enjoy their right for freedom. If this abandonment is universal, such exchange may be considered just. By insisting that everything individual is also social because it requires and is embedded into social context, R.Forst presents intersubjectivity as a fundamental dimension of human existence that shows itself in our ability to self-determination, i.e. freedom, but within the limits of human community. Also his point is that our obligations are no less rooted in our existence than our rights, and law has no priority over good and depends on moral good as a defining factor of justice. (shrink)

Rawls's theory of justice has had two parallel lives in political theory. The first is framed as an alternative to utilitarianism, and in particular utilitarianism's failure to take seriously the separateness of persons and each individual's right to pursue his or her own projects in life. The second is framed as an alternative to libertarianism, and in particular libertarianism's failure to take seriously our moral obligations to the well‐being of our fellow citizens. This chapter explores where and (...) why Rawls's “justice as fairness” and libertarianism come apart. It focuses on their respective treatments of the just distribution of wealth. Finally, in the real world one would have to worry about the strains of commitment not just for those who want to defect from “justice as fairness” once they see how things turn out for them, but also from those who never accept its normative vision. (shrink)

This book is a collection of essays on various problems arising in connection with John Rawls's theory of justice. Its focus is the method of wide reflective equilibrium. The first half of the book begins with Daniels's well-known essay "Wide Reflective Equilibrium and Theory Acceptance in Ethics" and ends with an excellent discussion of the role of reflective equilibrium in Rawls's Political Liberalism. The essays in the second part discuss justice in health care. They are of interest in (...) their own right, and also as illustrating Daniels's view that for those practicing the method of reflective equilibrium, applied moral philosophy is integral to the process of moral theorizing. Daniels says that the essays do not constitute a systematic treatment of wide reflective equilibrium. But they display a much higher degree of thematic coherence than is usual in a collection, and they read much like the chapters of a monograph. (shrink)

A libertarian theory of justice holds that persons are self-owners and have the Hohfeldian moral power to justly acquire property rights in initially unowned external resources. Different variants of libertarianism can be distinguished according to their stance on the famous Lockean proviso. The proviso requires, in Locke’s words, to leave ‘enough and as good’ for others, and thus specifies limits on the acquisition of property. Left-libertarians accept an egalitarian interpretation of the proviso, ‘right-libertarians’ either reject any (...) kind of proviso or accept rather weak versions of it. In be-tween there is room for moderate interpretations of the proviso, and in particular for a sufficientarian interpretation: a ‘sufficiency proviso.’ The resulting theory of justice can be called ‘moderate libertarianism.’ In this article I make a case for moderate libertarianism, so understood. I argue that moderate libertarianism has advantages over both left- and right-libertarianism because it better coheres with the most plausible rationale for endorsing a libertarian theory of justice in the first place. (shrink)

PHILOSOPHY OF NATURE AND CULTURE AND ITS ROLE IN SHAPING HUMANKIND’S ATTITUDE TO NATURE We live in an era of crises. One of them, the ecological crisis, arose from the fact that the human race plunders nature, destroying, among other things, the Earth’s biodiversity. In my paper I will show that the situation is rooted in a specific worldview. Moreover, I will interrogate the question of how we can deal with the problem. Humankind’s attitude to themselves and to the world (...) (including nature) is based on beliefs and values which make up an unquestioned prejudgment. Individuals absorb it in the process of socialization, as they assimilate the widely understood traditions of the social groups to which they belong. In the Western tradition in particular, our understanding of humanity’s situation in the world and its relation to nature, which we have had since modernity, found its clearest articulation in the views of René Descartes (1596–1650). I will begin by discussing the main characteristics of this position most pertinent to the main problem identified in the title. Then I will discuss the consequences of Cartesianism for the worldview of modern man such as the radical rationalism and anthropocentrism inherent in the European attitude. In this tradition humanity is identified with subjectivity and intellectual cognition. Reality outside of human subjectivity, that is, the whole animate and inanimate nature, is treated as the object of knowledge. Nature should be explored in the spirit of modernity’s maxim “We can do as much as we know” (F. Bacon 1561-1626); it can be used to our purposes, to satisfy our growing needs. This is being done without scruple, precisely because nature is denied being the subject. It has no right to claim moral protection. Today, in the era of globalization, this way of thinking, which originated in the West, has spread over the entire globe and led to the ongoing devastation of nature. We are dealing with an ecological disaster. In the next step I will interrogate how this situation can be changed and what may be the role of philosophy in this cultural shift. Every vision of the world is a construct (the Cartesian vision being a very good example). What philosophy can do is offer a certain vision of reality, in which humanity has a friendly (symbiotic) attitude to nature and does not treat it merely as a means to their ends. Such ecophilosophy could be based on the thesis that subjectivity is the property not just of all human beings, but of all other beings as well. Such an idea can be found in the work of the German scientist and philosopher Jacob von Uexküll (1864-1944), who granted the status of the subject to every living being. He laid foundations to the concept of nature as “a community of subjects” comprising man and the entire animate world, thus breaking away from the Cartesian framework. I am going to outline briefly his position. Finally, I will point out what needs to be done, if people are to change their attitude to nature. A good theory in and of itself will not suffice. It is necessary to instill ecological convictions and values in entire societies, so that these values would eventually come to seem obvious. We need to launch an extensive education campaign of both adults and—perhaps even more importantly—children. In other words, the comprehensive protection of nature can only be promoted through the nexus of ecophilosophy and education. (shrink)

This book explores secession from three normative disciplines: political philosophy, international law and constitutional law. The author first develops a moral theory of secession based on a hypothetical multinational contract. Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. The book’s second part then argues that international law is more inclined to accept and advance a remedial right approach to secession. Therefore, justice as multinational (...) fairness is to be fully institutionalized under the constitutional law of liberal democracies. The final part proposes constitutionalizing a qualified right to secede with the aim of fostering recognition and accommodation of national pluralism as well as cooperation and compromise between majority and minority nations. (shrink)

In this book Billy Christmas advances an interpretation of justice grounded in a distinctive theory of property. Christmas’ account of property is at the same time pluralistic – it justifies various forms of property of external objects – and grounded in one original natural right: the right to freedom. Indeed, one main take-away of the book is that freedom as non-interference does not only justify private property: it can also justify common property.

Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels (...) turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

The right to private property is among the most fundamental in liberal theory. For many liberals the idea of the state is grounded in its role as a protector of private property. If the liberal state is justified by its ability to protect property, the modern welfare state is often justified by its ability to meet needs. According to a view commonly referred to as “welfarism,” the very fact that needs exist implies there is a (...) moral obligation to meet them. In this Article I appeal to Rawlsian contractualist justification, including the “criterion of reciprocity,” in developing a third manner of thinking about the relationship between property and welfare. I argue that welfare rights are necessary conditions for justifying a role for the state in enforcing the “right to exclude,” a fundamental element of private ownership. My Article thus aims to use Rawls’ account of justification, outlined in his later works, to theorize the notion of property-owning democracy from Theory of Justice. (shrink)

G. E. Moore was a central figure in twentieth-century philosophy. Along with Russell and Wittgenstein, he pioneered analytic philosophy, and his Principia Ethica shaped the contours of twentieth-century ethics. Indeed, until the publication of Rawls's A Theory of Justice, no single book in moral philosophy was to equal Principia's influence. Unfortunately, however, Principia Ethica has so dominated critical discussions of Moore's work that even experts on his moral philosophy have tended to ignore his Ethics, which he published eight years (...) later. But Ethics is Moore's only other book on moral philosophy, and one of only a handful of post-Principia publications dealing with ethics. Its detailed discussions of utilitarianism, free will, and the objectivity of moral judgements find no real counterpart in Principia while its account of right and wrong and of the nature of intrinsic value deepen our understanding of his moral philosophy. The republication of Ethics thus rounds out our understanding of Moore's ethical thought. But the book's value goes beyond its historical or scholarly interest. A short but philosophically rich text, Ethics stands independent of Principia and repays careful study in its own right. By raising a number of fundamental questions in ethics, questions that remain live today, by proffering clear, credible, and often innovative answers to them, and by doing so with a philosophical skill that is still impressive, Moore's short book is a minor classic. Almost a century after its original publication, it still amply rewards those who read it.This new edition of Moore's Ethics includes his essay 'The Nature of Moral Philosophy' as well as editorial notes, an introduction, and a guide to further reading. (shrink)

Historical entitlement theories of property rights, which claim that individuals can acquire moral property rights over natural resources by appropriating them, traditionally face a strong objection: it is widely implausible that a single individual can unilaterally impose duties on everyone around him and yet, apparently, this is exactly what such theories allow. In this essay, I argue that the same problem appears in all other theories of distributive justice and if this problem was a reason to reject historical (...) entitlement theories, it would also be a reason to reject all rival theories. Which means that as long, as one is committed to any theory of distributive justice at all, she, at the risk of inconsistency, cannot rely on the aforementioned objection to criticize historical entitlement theories. (shrink)

In this volume, fourteen philosophers, economists and legal scholars and one computer scientist address various facets of the same question: under which conditions (if any) can intellectual property rights be fair? This general question unfolds in a variety of others: What are the parallels and differences between intellectual and real property? Are libertarian theories especially sympathetic to IP rights? Should Rawlsian support copyright? How can a concern for incentives be taken into account by each of the main theories (...) of justice? What's exactly wrong with free-riding, when dealing with non-rival goods? This requires a close examination of a variety of specific issues such as peer-to-peer file sharing, access to vital medicines, the interaction between copyright and freedom of expression, patents on genes, etc. It also involves bringing together state-of-the-art knowledge on legal, economic and technical issues with the most advanced state of our normative theories. (shrink)

This is the first book to take a comprehensive look at white collar criminal offenses from the perspective of moral and legal theory. Focussing on the way in which key white collar crimes such as fraud, perjury, false statements, obstruction of justice, bribery, extortion, blackmail, insider trading, tax evasion, and regulatory and intellectual property offenses are shaped and informed by a range of familiar, but nevertheless powerful, moral norms.

By ‘Liberalism’ or ‘a liberal-democratic theory of justice’ I understand the thesis that a modern, affluent society is just only if it respects and enforces certain rights. Among these are rights to free speech, the liberty to make one's own self-regarding choices, privacy, due process of law, participation in society's political decision-making, and private property in personal posessions. By a ‘justification’ of these core rights of liberalism I understand a moral theory from which they are derivable. A (...) moral theory which justifies the core rights will, ipso facto, condemn slavery, totalitarianism, and other social arrangements incompatible with a liberal-democratic constitution. What shape that moral theory should have is a matter of some dispute. According to philosophers like Ronald Dworkin it must be ‘rights-based.’ The core rights of liberalism in his view are derivable from the fundamental human right to ‘equal respect and consideration.’ A widely held alternative view is that the core rights are simply social rules the existence of which promotes human welfare. (shrink)

John Rawls's A Theory of Justice was published in December 1971 and has already established itself as a landmark. No other philosophical work, in our time or before, has, to my knowledge, excited so much attention in so short a time and in such varied circles. Clearly the book answers to a set of needs that have just recently surfaced, and it was published at just the right time to benefit from changing directions in philosophy and other areas (...) of intellectual life brought on by enormous and accelerating changes in social conditions and concerns, by the disaster of Vietnam, and by the sense that something serious and sufficient must be done to counter the increasing fragmentation of knowledge and the divorce of science from society. Rawls gives one the sense of putting it all together; of seeing things clearly and seeing them whole; of joining together again economics, jurisprudence, and social and moral theory; and of putting philosophy to work once again in the service of society and humanity. In particular, he gives one the sense that there can be a science of justice, of morality, and of values. (shrink)

The “welcome return” to “substantive political philosophy” that Rawls'sA Theory of Justicewas said to herald has resulted in forty years of proposals seeking to show that philosophical reflection leads to the demonstrable truth of almost every and any conceivable view of the justice of property rights. Select any view—from the justice of unregulated capitalist markets to the most extreme forms of egalitarianism—and one will find that some philosophers have proclaimed that rational reflection uniquely leads to its justice. This (...) is, I believe, a sort of ideological thinking masquerading as philosophizing. In this paper, using some tools from game theory as well as experimental findings, I seek to sketch a non-ideological approach to the question of the justification of property rights. On this approach the aim of political philosophy is, first and foremost, to reflect on whether our social rules of property are within the “optimal eligible set” of rules acceptable to all. (shrink)

Equal Justice explores the role of the idea of equality in liberal theories of justice. The title indicates the book’s two-part thesis: first, I claim that justice is the central moral category in the socio-political domain; second, I argue for a specific conceptual and normative connection between the ideas of justice and equality. This pertains to the age-old question concerning the normative significance of equality in a theory of justice. The book develops an independent, systematic, and comprehensive theory (...) of equality and egalitarianism. The principal question is about the importance of equality in a theory of justice. More precisely, we should pose questions in four contracting circles: 1. Is justice the supreme value guiding our setup of the basic structure of society, or are there other, equally important values, such as recognition, care, communal belonging? 2. If justice is the highest guiding principle, which competing ideals—especially equality and freedom—ought to have precedence in a policy oriented toward justice? What status does the ideal of equality have in that framework? 3. If equality is a basic ideal of just policy, how should it be practically realized? What sort of equality (equal opportunity, equality of welfare, resource equality) should be demanded? 4. What patterned distribution of which specific goods does the ideal of equality demand? Which principles of distribution can be justified according to our justice ideal? To conclude and summarize: 5. What is the essential core of an egalitarian theory of justice, as opposed to an inegalitarian theory? These five questions structure the work’s order of argumentation. Part A elaborates the conceptual foundations and basic moral principles of justice and equality. Chapter I sets out to install justice as the central moral category in the socio-political domain. At the beginning of the first chapter, the conceptual foundations of justice are clarified. While not eliminating the classical distinctions between different forms of justice, I argue that the distributive paradigm is of primary importance. The primacy of justice in the socio-political domain is developed out of a confrontation with alternative positions, those which maintain either that justice generally, or distributive justice in particular, are subsidiary virtues. At the end of Chapter I, the first of the questions mentioned above is answered in a way that establishes justice as the guiding normative concept for the foundation and evaluation of any social order. To clarify the role of equality in a theory of justice, Chapter II separates the idea of equality into four different principles. They are organized in a way that begins with the most general and uncontroversial principle of equality, and progresses towards increasingly detailed and contested principles. There are two theses that articulate and defend the significance of equality for justice: First there is a conceptual connection between justice and equality, in that principles of formal and proportional equality are necessary in order to explicate the concept of justice. These two principles establish an unbreakable bond between justice and equality. Justice can only be explained—or so I argue—by reference to these and other (normative) principles of equality. The second thesis posits a normative relationship between justice and equality, which is disclosed by three substantive principles of equality: moral equality, the presumption of equality, and the principle of responsibility. I argue that the normative core of an egalitarian theory of justice is expressed by the latter two principles, which are themselves based on the first principle, that of moral equality. When we view one another as persons, what form of equality or equal treatment is normatively demanded? I argue that the answer to this question is given by the procedural principle of the presumption of equality: regardless of their apparent differences, all persons deserve strictly equal treatment, unless certain kinds of differences have whatever particular relevance would justify, on generally acceptable grounds, unequal treatment or unequal distribution. The justification of the presumption of equality is central to this work and has considerable importance. If the presumption principle’s validity can be justified by enlisting the principle of general justification, then the primacy of equality, and the essential argument for an egalitarian theory of justice, is established. This would likewise provide a procedure for the construction of a material theory of justice. The second question is answered thereby at the end of Chapter II: Equality should have primacy over competing ideals within a justice-oriented policy. The presumption of equality establishes this primacy and, at the same time, offers an appropriate metric and guideline for the construction of a material theory of distributive justice. The presumption of equality in Part B offers an elegant procedure for the development of a theory of distributive justice. Chapter III clearly sets out the necessary prerequisites that a theory of distribution must satisfy in order to determine a liberal-egalitarian distributional framework. We need to specify in which situation the distribution takes place; which goods are and are not to be distributed; in which respect the presumptive equality is to be produced; and by and to whom, and for what period, the relevant goods are to be distributed. The distribution is based on resources understood as general-purpose means. It is necessary to divide goods into different categories, since the justification for unequal treatment in one domain will not carry over into another. This makes presumptive equality necessarily complex. To that end, four spheres of justice are distinguished: (1) the political sphere, which involves allocating rights through the distribution of civil liberties; (2) the democratic sphere, in which political power and the rights of political participation are regulated; (3) the economic sphere, in which income and property are distributed; (4) the social sphere, in which social positions and opportunities are distributed. This framework of distributive justice answers the third of our guiding questions, about the nature of equality, in terms of equality of resources. Chapters IV and V set out the egalitarian distributive criteria for each sphere. I argue that the generally accepted, fundamental rights of classical liberalism are more effectively reconstructed by reference to the equal resource distribution presumptively required in those spheres. Chapter IV shows that when it comes to the first two spheres, those involving basic rights and freedoms and entitlement political participation, there can be no justified exceptions to the equal distribution of the relevant goods. That section argues, contrary to what we commonly find in theories of freedom or popular sovereignty, that the value of freedom and self-determination as the political basis of autonomy is best realized through the presumption of equal distribution. Chapter V deals with the other two spheres, those of economic goods and social positions, and argues for justified exceptions to equal distribution. In the economic sphere we find one principal reason favouring unequal distribution of resources, and three restrictions and compensations limiting that inequality. The basic exception to equal economic distribution arises from the unequal consequences of personal responsibility. From a suitably egalitarian standpoint, the principle of responsibility is the normative principle that determines which reasons justify economic inequality. Here the basic idea is that unequal shares of social goods are fair if they result from the choices and deliberate actions of the relevant parties. That individuals have to bear the costs of their own choices is a condition of autonomy. However, benefits or disadvantages arising from arbitrary and unmerited differences in social circumstances or natural endowments is unfair. The unequal consequences of independent decision-making and action must therefore be limited by compensating first for preferences, secondly for disadvantages, and thirdly by redistributing wealth in aid of the worse-off. I situations of emergency, compensating for disadvantages has priority over all other claims, owing to the urgency of the situation. Social inequalities go beyond the permissible limit if it is possible to improve the long-term social or economic situation of the worse-off by redistributing wealth to them. These exceptions lead to a complex system of free economic action within a framework of compensatory tax and transfer mechanisms. Finally, in the social sphere, the distribution of social positions, offices and opportunities must be structured to ensure that equally talented and motivated citizens have roughly equal chances of obtaining those offices or positions, irrespective of their economic or social class backgrounds. This compromise is permissible for reasons of freedom and prudence, and it makes a certain measure of inequality acceptable. The fourth of our guiding questions is answered accordingly. There are five principles of justice for the basic structure of society, and five legal principles that govern the special distribution of goods in the respective spheres—all are ranked according to their most defensible grounds of priority, ensuring that everyone is accorded equal justice. Chapter VI recapitulates the initial question of equality’s value. The conception of equal justice developed in this work postulates five principles of equality and five principles of law; these constitute an egalitarian framework because they support and promote social justice. Equality has value with respect to them, but is not given any independent, intrinsic value. That is why I call the account developed here a form of constitutive egalitarianism: justice is realized through the realization of equality, itself accomplished by applying the five postulates of equality and five distributive principles of law. This is an egalitarianism on two levels. The first level is involves the claim that morality or justice is conceptually connected with equality. The second level gives equality a substantial weight in what is conceptually validated at the first level, namely the presumption of equality, and constructs an appropriate interpretation and conception of distributive justice through principles of distribution for the individual spheres. The weight and importance of equality is shown by the distributive criteria applied to those spheres. This answers our final guiding question about the nature of an egalitarian theory. (shrink)

Con la finalidad de fundamentar y reforzar su teoria de los bienes primários, J. Rawls introduce, en el §65 de Una teoria de la justicia, la idea de "principio aristotélico". Se discuten las dificultades que implica aceptar dicha noción, asi como las limitaciones de la idea de bien que subyace en dicho principio. Se busca mostrar que la concepción de bien que Rawls presenta alli padece de "insuficiencia moral" y se defiende la tesis de que su aproximación a la idea (...) de bien opaca la dimensión práctica de la racionalidad. In order to ground and reinforce his theory of primary goods, J. Rawls introduces the idea of the "Aristotelian principle" in §65 of A Theory of Justice. The article discusses the difficulties entailed by the acceptance of this notion, as well as the limitations of the idea of the good underlying that principle. The objective is to show that the conception of the good presented by Rawls is affected by "moral insufficiency" and to argue in support of the thesis that his approach to the idea of the good overshadows the practical dimension of rationality. A fim de fundamentar e reforçar sua teoria dos bens primários, J. Rawls introduz, no parágrafo 65 de Una teoría de la justicia, a ideia de "principio aristotélico". Discutemse as dificuldades que implica aceitar essa noção, bem como as limitações da ideia de bem que subjaz nesse principio. Pretendese mostrar que a concepção de bem que Rawls apresenta ali padece de "insuficiência moral". Além disso, defendese a tese de que sua aproximação à ideia de bem ofusca a dimensão prática da racionalidade. (shrink)

Introduction: the foundation of justice -- Practical reason and justifying reasons: on the foundation of morality -- Moral autonomy and the autonomy of morality : toward a theory of normativity after Kant -- Ethics and morality -- The justification of justice: Rawls's political liberalism and Habermas's discourse theory in dialogue -- Political liberty: integrating five conceptions of autonomy -- A critical theory of multicultural toleration -- The rule of reasons: three models of deliberative democracy -- Social justice, (...) justification, and power -- The basic right to justification: toward a constructivist conception of human rights -- Constructions of transnational justice: comparing John Rawls's the law of peoples and Otfried Höffe's democracy in an age of globalisation -- Justice, morality, and power in the global context -- Toward a critical theory of transnational justice. (shrink)

This book gives an account of a full spectrum of property rights and their relationship to individual liberty. It shows that a purely deontological approach to justice can deal with the most complex questions regarding the property system. Moreover, the author considers the economic, ecological, and technological complexities of our real-world property systems. The result is a more conceptually sound account of natural rights and the property system they demand. If we think that liberty should be (...) at the centre of justice, what does that mean for the property system? Economists and lawyers widely agree that a property system must be composed of many different types of property: the kind of private ownership one has over one's person and immediate possessions, as well as the kinds of common ownership we each have in our local streets, as well as many more. However, theories of property and justice have not given anything approaching an adequate account of the relationship between liberty and any other form of property other than private ownership. It is often thought that a basic commitment to liberty cannot really tell us how to arrange the major complexities of the property system, which diverge from simple private ownership. Property and Justice demonstrates how philosophical rigour coupled with interdisciplinary engagement enables us to think clearly about how to deal with real-world problems. It will be of interest to political philosophers, political theorists, and legal theorists working on property rights and justice. (shrink)

It has become fashionable to question attempts to derive internationally agreed duties of clinical care from more general theories of human rights. For example, some argue that such attempts risk moral abstraction through their neglect for the importance of culture and community in shaping moral consciousness and are thus often unhelpful in the resolution of concrete moral dilemmas within medicine. Others denounce the importance of general moral principles altogether in bioethics and attempt to articulate what are claimed to be more (...) practical approaches to resolving moral conflict. This paper challenges such arguments. It does so through arguing that: i) all humans everywhere have the same basic human needs; ii) the satisfaction of these needs varies with culture; iii) the imputation of moral duties on others entails respect for their right to basic need satisfaction, including the right to choose between cultures; iv) internationally accepted clinical duties of care embrace presumptions about the duties and rights of patients which follow from these more general principles and v) problems of moral indeterminacy that arise from putting these principles into practice can be resolved through associated procedural policies of rational negotiation and compromise. The moral importance and practicality of respect for individual human rights within the practice of medicine is thus defended. Indeed, the paper concludes by arguing that without belief in human rights linked to a theory of basic human needs, communitarian theories of morality are incoherent. (shrink)

A half-century of Rawls interpreters have overemphasized economic equality in A Theory of Justice, slighting liberty—the central value of liberalism—in the process. From luck-egalitarian readings of Rawls to more recent claims that Rawls was a “reticent socialist,” these interpretations have obscured Rawls’s identity as a philosopher of freedom. They have also obscured the perhaps surprising fact that Rawlsian liberties (basic and non-basic) restrain and even undermine that same economic equality. As I will show in this article, such undermining occurs (...) in three areas: first, in the lexical priority of the basic liberties; second, in the (underappreciated) role played by free and competitive markets in Rawls’s theory; and third, in the structure and functioning of Rawls’s preferred economic institutions, viz., liberal socialism and property-owning democracy. (shrink)

The first wave of philosophical work on global justice focused largely on the distribution of economic resources, and on the development or reformation of institutions relevant thereto. More recently, however, the horizon has broadened significantly, to also include a concern with the global spread of the right to live under reasonable legal institutions and representative forms of government (cf. “a human right to democracy”). Thus, while the first wave was focused primarily on international (non-territorial) institutions, later work has (...) also brought critical focus to bear on domestic institutions traditionally assumed to be protected by rights of state sovereignty. This naturally raises the question of whether, when, and how the international community can coercively intervene in issues falling under assumed to fall under domestic jurisdiction. Many theorists of global justice will accept, however reluctantly, that coercive means such as military force may be used (even unilaterally, if necessary) to halt a government’s mass atrocities against its civilian population (so-called “humanitarian intervention”). They are, however, for the most part firmly opposed to the use of military force as a tool to force regime change or democratic reform. I will discuss the viability of this stance along two dimensions: (i) can we draw a morally relevant distinction between humanitarian intervention and regime change policies? (ii) can we draw a morally relevant distinction between the use of military force as a policy tool and the use of other kinds of coercive measures such as economic sanctions? (shrink)

Rawls' main aim in A Theory of Justice is to provide a viable alternative to the utilitarianism which has dominated so much modern moral philosophy. Although philosophers have long recognised the difficulties in the way of acceptance of a utilitarian account of judgments of justice, they have often responded by seeking merely to reformulate the principle of utility. Other philosophers, with a juster appreciation of the seriousness of these difficulties, have been prepared to reject utilitarianism in all its guises, (...) but they have failed “to construct a workable and systematic moral conception to oppose it”. What is needed, beyond a powerful reaffirmation of the familiar objections to utilitarian accounts of justice, is the careful elaboration of a radically non-utilitarian theory of justice. It is this need which Rawls sets out to meet in his book. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ethical Theory and Responsibility Ethics: A Metaethical Study of Niebuhr and Levinas by Kevin JungMichael SohnEthical Theory and Responsibility Ethics: A Metaethical Study of Niebuhr and Levinas KEVIN JUNG Frankfurt am Main: Peter Lang, 2011. 237 pp. $69.95In Ethical Theory and Responsibility Ethics, Kevin Jung presents a historical and constructive analysis of two of the most prominent defenders of responsibility ethics: H. Richard Niebuhr and (...) Emmanuel Levinas. The Niebuhr and Levinas specialist will find detailed, historical discussions and clear, rigorous analyses of these thinkers’ philosophical and theological thought. But where Jung’s project really makes a distinct contribution to the field of ethics—and where his work may be of interest to the nonspecialist—is when he brings their insights and oversights into critical conversation with analytic philosophy. Rendering a mutually productive dialogue, he persuasively argues that categories within analytic philosophy cohere with and clarify their respective positions; conversely, their concrete responsibility ethics may contribute to analytic philosophy. [End Page 223]Chapter 1 introduces key concepts and issues within contemporary analytic philosophy relevant to responsibility ethics; these concepts and issues resurface toward the end of the book when Jung puts them in dialogue with the ethical theories of Niebuhr and Levinas. Chapter 2 reconstructs the philosophical and theological background of Niebuhr’s moral theory, engaging a number of influential thinkers—Friedrich Schleiermacher, Albrecht Ritschl, Ernst Troeltsch, Karl Barth, Josiah Royce, and Martin Buber—who shaped his thought. Chapter 3 examines more closely Niebuhr’s responsibility ethics itself. In the next two chapters, Jung applies the same structure of analysis to Levinas’s ethical theory: he considers Levinas’s philosophical and theological context; engages the works of Edmund Husserl, Martin Heidegger, Franz Rosenzweig, and Buber; and then exposits Levinas’s own distinct position. Jung traverses and navigates complex and divergent concepts and ideas proposed by Niebuhr and Levinas with clarity and finesse. His purpose is to interpret their arguments in light of their respective positions in ethical theory. In the final two chapters, Jung’s work turns more explicitly constructive when he puts their theories into conversation with analytic philosophy.The specialist in Niebuhr or Levinas studies may find that Jung’s attempts to clarify their thought with foreign, extrinsic categories do violence to their works. Indeed, on occasion Jung seems to shoehorn their ideas into analytical concepts that may not do full justice to the full breadth of their thought. For instance, Jung rightly indicates that Levinas rejects a certain kind of abstract ethical universalism on the basis of his emphasis on the concrete relation to the particular other. But to conclude from this that he is an ethical particularist does not adequately account for the categorically imperative nature of the ethical demands and responsibility to the other that Levinas proposes. In other words, it seems to me that Levinas offers a form of ethical universalism that begins precisely in the concrete situation without collapsing into an ethical particularism.Despite these minor reservations, Jung’s work is to be commended not only for its excellent exposition and rigorous studies of Niebuhr and Levinas but also for its successful attempt overall to clarify and give greater coherence to their ideas with the tools of analytic philosophy. In so doing, Jung provides robust theoretical reflection on responsibility ethics in a time of augmented human power and capacities. [End Page 224]Michael SohnCleveland State UniversityCopyright © 2014 Society of Christian Ethics... (shrink)

Hume and contemporary Humeans contend that moral sentiments form the sole and sufficient basis of moral judgments. This thesis is criticised by appeal to Hume’s theory of justice, which shows that basic principles of justice are required to form and to maintain society, which is indispensable to human life, and that acting according to, or violating, these principles is right, or wrong, regardless of anyone’s sentiments, motives or character. Furthermore, Hume’s theory of justice shows how the principles (...) of justice are artificial without being arbitrary. In this regard, Hume’s theory belongs to the unjustly neglected modern natural law tradition. Some key merits of this strand in Hume’s theory are explicated by linking it to Kant’s constructivist method of identifying and justifying practical principles (à la O’Neill), and by showing how and why Hegel adopted and further developed Kant’s constructivism by re-integrating it with Hume’s central natural law concern with our actual social practices. (Slightly revised English translation by the author of „Von der Konvention zur Sittlichkeit. Humes Begründung einer Rechtsethik aus nach-Kantischer Perspektive“, on which see below.). (shrink)

Justice as Right Actions presents an original theory of justice anchored in the analytical philosophical tradition. In contrast to many contemporary approaches, the theory provides normative guidance, rather than focusing solely on political structures and institutions, as the question of justice is seen to comprise both a moral inquiry concerned with questions of good and bad, right and wrong, and a political inquiry, concerned with the nature of the polity and how individuals relate to it. Presenting (...) a relational account of justice, rather than a distributive account the latter, so much more prevalent in current studies communications are seen as the key to the theory, both in the substantive sense as a discursive method of resolving disputes, as well as instrumentally, in the transmission of concepts, especially values through time. Rule-oriented in approach, justice as right actions attempts to be value-neutral, acknowledging, however, an underlying thin theory of the good, including concepts of rationality, autonomous moral agency, equal concern and respect for others, as well as plurality of values. Its political context is liberalism, with components of negative liberty and equality of concern and respect, while underscoring as well, the concepts of tolerance and social diversity. In this study, the original theory of Justice as Right Actions is also contrasted with and situated among contemporary accounts of justice, including the most important theoretical works on the topic in the past half-century. Thus, the study also serves as a valuable review and critique of such major contemporary accounts of justice. (shrink)

The idea of human rights gained prominence at a time when the rising bourgeoisie viewed the state as the main obstacle to commercial expansion, private property as the major protection against dependency, and material scarcity as an indelible condition of society. As moral concepts are largely shaped by the social forces that call them into being, it is not surprising that the very language of rights was early tailored to suit the needs of an expanding, acquisitive, increasingly powerful segment (...) of society. (shrink)

Property-owning democracies combine the regulative and redistributive functions of the welfare state with the governmental aim of ensuring that wealth and capital are widely dispersed. John Rawls, political philosophy’s most famous property-owning democrat, argued that property-owning democracy was one of two regime types that best realized his two principles of justice, though he was notoriously vague about how a property-owning democracy’s institutions are meant to realize his principles. To compensate for this deficiency, a number of Rawlsian (...) political philosophers have tried to add institutional and policy content to the idea. While their efforts have advanced the discussion, few have criticized the soundness of these attempts. This article attempts to fill the void. I claim that, in comparison to welfare-state capitalism, property-owning democracy is both prohibitively impractical and unjust on Rawlsian grounds. I first argue that property-owning democracy is economically ineffective. Even granting the assumptions of Rawlsian ideal theory, property-owning democracies generate bad incentives and face severe information problems in comparison to more market-friendly welfare states. Further, in nonideal theory the motivations of political officials and citizens will likely be corrupted by the temptation to abuse the awesome state power at their disposal. Second, I argue that property-owning democracy is unjust relative to welfare-state capitalism. The three principles used to defend property-owning democracy—the difference principle, the principle of fair equality of opportunity and the “political liberty” proviso—do not vindicate property-owning democracy and may even prohibit it. Welfare-state capitalism does much better. (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)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:A Theory of Bioethics by David DeGrazia and Joseph MillumColin Hoy (bio) and Winston Chiong (bio)Review of David DeGrazia and Joseph Millum, A Theory of Bioethics (Cambridge University Press, 2021)David DeGrazia and Joseph Millum’s A Theory of Bioethics 2021 arrives at a curious time for an ambitious effort at systematic theory construction, seemingly out of step with bioethical fashion. At the same time, a (...) prominent group of philosophical bioethicists authored an article, possibly with a touch of defensiveness, to “make the case that philosophy and philosophers still have a very important and meaningful role to play in contemporary bioethics” (Blumenthal-Barby et al. 2021). Meanwhile, the annual meeting of the American Society for Bioethics and Humanities included several expressions of impatience with the historical privileging of philosophy over more empirical, situated, and community-oriented approaches to moral problems in health.DeGrazia and Millum’s work itself reflects the current state of bioethics and how it has changed since the heyday of grand bioethical theory construction in the late twentieth century. To apply Parfit’s philosophical taxonomy (1984), the general frameworks promulgated by theorists like Veatch, Engelhardt, and Gert, as well as Beauchamp and Childress, were by necessity revisionary. These bioethical theories were whole-cloth alternatives to a conventional and paternalistic medical ethos that was already widely acknowledged as unsatisfactory. Today, however, bioethics is a mature and institutionalized field, with well-established practices and a corpus of accepted tenets (alongside matters of ongoing but generally demarcated controversy). A plausible and fruitful contemporary theory of bioethics must be largely descriptive, in Parfit’s sense, providing an intellectual framework that gives coherence and sense to existing practice, while at the same time clarifying matters of confusion.In contemporary bioethics, a central component of this practice is the application of the four principles of biomedical ethics—non-maleficence, beneficence, justice and autonomy—not merely as originally proposed by Beauchamp and Childress (2019), but in their refined form, following decades of exchange, critique, and revision. DeGrazia and Millum’s theory begins with two core values: well-being and respect for rights holders. [End Page 321] The bulk of the book then applies the method of reflective equilibrium to specify these two values in terms of the canonical four principles, here treated as “mid-level” constructs with readier application to specific cases than the two core values. Experienced bioethicists may have an uncanny sense of setting off from a new trailhead, and yet, eventually finding themselves still walking a familiar path. However, this way of introducing and explicating the four principles will likely be more accessible to a wider audience, including high-level undergraduates and graduate students not already versed in the revisions, refinements, and compromises embedded in Beauchamp and Childress’s discussions.Two other features recommend this book as a resource for trainees and interested non-experts seeking to deepen their understanding of bioethics. First, the clarity of its style and organizational approach provides a welcome orientation for non-specialists. The chapters are structured so that major contending perspectives are outlined before the authors develop arguments for their own positions in that context. Each chapter proceeds by considering applications of the broader theory, showing how it can illuminate potential candidate approaches or policies, as well as demonstrating how to use the tools of ethical analysis to evaluate these proposals in both ideal and non-ideal cases. This didactic approach to the relationship between conceptual argument and practice will be accessible to many who are initially unfamiliar with or intimidated by theory. Second the commendable decision to make the book electronically available and accessible also has the potential to broaden the reach of the work, and in particular, to engage parties in under-resourced settings, which have so often been overlooked in bioethical discourse.As noted above, while the authors’ approach is descriptive in Parfit’s sense, it is not necessarily conservative. In many places, the authors highlight how their theory includes elements or renders conclusions that are not broadly accepted, and following the method of reflective equilibrium, they advocate for these positions both in terms of broad principles and particular judgments about cases. This begins with their dual-value... (shrink)

Many liberal political philosophers hold that the state should not impose or even promote any particular conception of the good life or human flourishing. It should not, for instance, enact laws and policies designed to elevate citizens' tastes, to refine their sensibilities or to perfect their characters. Instead, the state should restrict itself to maintaining a fair framework of rights and opportunities within which all citizens can pursue their own beliefs about what constitutes a good life. Against this backdrop, Collis (...) Tahzib develops a version of perfectionist political philosophy. Whereas previous perfectionists have argued that the promotion of flourishing ways of life is permissible or legitimate, Tahzib casts perfectionism as a doctrine of justice. On this view, the implementation of laws and policies designed to promote sound ideals of the good life--ideals such as moral, intellectual and artistic excellence--is not merely a legitimate complement to justice but an essential constituent of justice. Over the years, perfectionism has faced various objections: that it is premised on values and judgements that are controversial within modern pluralistic societies; that it is unduly restrictive of freedom or autonomy; that it treats citizens as if they are children, unable to run their own lives; that it expresses the meddlesome mentality of a village busybody; that it mistakenly assumes that there are objective truths about human flourishing; and that it risks the abuse of power by incompetent, overzealous or corrupt state officials. These ideas represent some of the deepest, most vibrant and most powerful strains in liberal thought. In defending perfectionism against these charges, the arguments in A Perfectionist Theory of Justice make a novel and important contribution to longstanding debates about the philosophical foundations of liberalism. (shrink)

Do citizens of liberal democratic states have a moral right to engage in civil disobedience? Famously, Joseph Raz argued that they do not. In this article, I defend his argument against some recent challenges, but show how it is tied to a particular model of civil disobedience. On this model, the purpose of civil disobedience is to protest and prevent particularly egregious violations of justice. A moral right to civil disobedience can be grounded on a different model, where (...) the function of civil disobedience is to identify and counterbalance democratic deficits. Against the widespread tendency amongst theorists of civil disobedience to want to defend civil disobedience as the exercise of a moral right, however, I do not then argue for the adoption of the democratic model. Whilst I acknowledge the reasons behind wanting a rights-based defence, and concede that different kinds of civil disobedience might have to be defended on different grounds, I sound a note of caution. The meta-theoretical relation between moral grounds and political function uncovered in this article works both ways. It should make theorists more mindful of the self-understanding to which a rights-based moral defence of civil disobedience commits protesters. (shrink)

This book develops an “idiomatic” foundational theory of the self and its moral obligations. It then employs this theory to answer a variety of questions about legal obligation, political authority, community, and international justice. It argues that we ought to obey a particular community’s laws and government commands, so long as our government restricts itself to protecting classical liberty and individual property rights under the rule of law. It further argues that people today should ideally live in (...) confederated, legally sovereign nation-states or nation-unions. Finally, it suggests that we have greater obligations to our compatriots than we do to foreign citizens, although we will often have pressing moral reasons to obey foreign laws while abroad, grant citizenship to outsiders who wish to join us, and help relieve foreign people’s misery. (shrink)

There is a lack of writing on the issue of the education rights of people with disabilities by authors of any theoretical persuasion. While the deficiency of theory may be explained by a variety of historical, philosophical and practical considerations, it is a deficiency which must be addressed. Otherwise, any statement of rights rings out as hollow rhetoric unsupported by sound reason and moral rectitude. This paper attempts to address this deficiency in education rights theory by postulating a (...) communitarian theory of the education rights of people with disabilities. The theory is developed from communitarian writings on the role of education in democratic society. The communitarian school, like the community within which it nests, is inclusive. Schools both reflect and model the shape of communitarian society and have primary responsibility for teaching the knowledge and virtues which will allow citizens to belong to and function within society. Communitarians emphasise responsibilities, however, as the corollary of rights and may require the individual good to yield to the community good when the hard cases arise. The article not only explains the basis of the right to an inclusive education, therefore, but also engages with the difficult issue of when such a right may not be enforceable. (shrink)

In Freedom's Right Axel Honneth seeks to provide a theory of justice by appropriating Hegel's account of ethical substance in the Philosophy of Right, but he wants to do so without endorsing Hegel's more robust idealist commitments. I argue that this project can only succeed if Honneth can offer an alternative, comparatively robust demonstration of the rationality and normative coherence of existing social institutions. I contend that the grounds Honneth provides for this claim are insufficient for his (...) purposes. In particular, I argue that Honneth's claim that “justice and individual self-determination are mutually referential,” even were it to be accepted, would be insufficient to underwrite his more robust identification between the normative foundations of justice, autonomy and reciprocal self-realization. In the final section of the paper, I turn to Honneth's analysis of the “social institution” of friendship, which he, following Hegel, holds up as a paradigmatic instantiation of social freedom understood as, in Hegel's words, “being with oneself in another” . I argue that an analysis of the normative import of friendship wholly in terms of mutual recognition misses an important aspect of the kind of self-realization that friendship makes possible. (shrink)