The aim of this paper is to show, contra the right-libertarian critique of social justice, that there are good reasons for defending policies of social justice within a free society. In the first part of the paper, we will present two influential right-libertarian critiques of social justice, found in Friedrich Hayek's Law, Legislation and Liberty and Robert Nozick's Anarchy, State and Utopia. Based on their approach, policies of social justice are seen as an unjustified infringement on (...) freedoms of individual members of a society. In response to this critique, we will introduce the distinction between formal and factual freedom and argue that the formal principle of freedom defended by Hayek and Nozick does not suffice for the protection of factual freedom of members of a society, because it does not recognise (1) the moral obligation to help those who, without their fault, lack factual freedom to a significant degree, and (2) the legal obligation of the state to protect civic dignity of all members of a society. In the second part of the paper, we offer an interpretation of Kant's argument on taxation, according to which civic dignity presupposes factual freedom, in order to argue that Kant's justification of taxation offers good reasons for claiming that the state has the legal obligation to protect factual freedom via the policies of social justice. (shrink)

In this journal, Dr Daniel Daly, an American bioethicist, uses a principlist approach (respect for autonomy, non-maleficence, beneficence and justice) to argue that intravenous opiate users should not be denied repeat heart valve replacements if these are medically indicated, ‘unless the valve replacement significantly violates another’s autonomy or one or more of the three remaining principles’.1 In brief outline, the paper seeks to use a widely accepted ethical theory—‘principlism’ as developed by Beauchamp and Childress over the last 40 plus (...) years and eight editions of their ground-breaking book Principles of Biomedical Ethics2—to resolve clinical disagreement about the ethics of denying medically indicated life-prolonging treatment to patients who continue or resume intravenous opiate use. The argument Dr Daly's argument in very brief summary is that in the context of contemporary American medical practice, such treatment is ethically justified—perhaps even ethically required—if requested or accepted by an adequately autonomous patient and thus respects the patient’s autonomy, if it is not harmful to the patient, if it is beneficial to the patient, and if it is fair and just in terms of Aristotle’s formal theory of justice according to which equals should be treated equally while unequals should be treated unequally in proportion to the morally relevant inequality or inequalities. Dr Daly focuses his argument around a typical case description where these conditions are met and therefore where, he concludes, repeat heart valve replacements ought to be provided. As Dr Daly notes, principlism ‘is not without its problems; nonetheless it does provide a viable set of principles that are widely held by medical ethicists and inform the work of ethics committees at many secular medical facilities’. DOI (declaration of interest): The writer of this editorial is a career-long supporter and defender of the use of ‘principlism’ or ‘the four principles …. (shrink)

Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is (...) not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive equality grounded in the equal dignity of each human being which requires giving each person his or her "due" - what is his or hers as a matter of right - a requirement that is usually understood to be in direct conflict with the basic principles of aggregate social welfare theories such as utilitarianism or its modern variant, economic efficiency. The elaboration of this substantive equality and its implications for morality, justice, and law form the core of the natural-law or natural-right theories of law. In this article I build upon a summary and critique of John Finnis's natural law theory (1) to delineate the basic assumptions and principles of the natural law theory regarding the foundations of and relationships among morality, justice, and law; (2) to demonstrate the agreement of major natural law theorists, from Aristotle through Aquinas and Kant to Finnis, on these basic assumptions and principles; (3) to distinguish these basic assumptions and principles from those of the competing theories of utilitarianism and economic efficiency; and (4) to clarify the nature of and distinctions between the two basic divisions of substantive justice: distributive justice and interactive justice. I use the term "interactive justice" instead of the usual term, "corrective justice," since the former term is much more informative and precise in conveying the distinct nature and domain of this type of justice, whereas the latter term almost always misleads people into one or both of two related misconceptions: (1) that "corrective" justice is concerned solely with the correction of wrongful injuries and has nothing to say about the nature of the underlying wrongs or the prevention of their occurrence, and (2) that it is merely a remedial corollary of distributive justice which corrects deviations from the distributively just distribution. Distributive justice and interactive justice separately address the two fundamental problems of human existence, and they employ quite different criteria of equality to resolve those problems. Together, they seek to assure the attainment of the common good (the full realization, to the extent practicable, of each person's humanity) by providing each person with her fair share of the social stock of instrumental goods (positive freedom via distributive justice) and by securing her person and her existing stock of instrumental goods from interactions with others that are inconsistent with her status as a rational being with equal, absolute moral worth (negative freedom via interactive justice). (shrink)

This paper presents an exercise in the formalization of political principles, by taking as its theme the concept of distributive justice that Karl Marx advanced in his Critique of the Gotha Programme. We first summarize the content of the Critique of the Gotha Programme. Next, we transcribe the core of Marx’s presentation of the concept of distributive justice. Following, we present our formalization of Marx’s conception. Then, we make use of that formal analysis to confront Marx’s (...) class='Hi'>principle of distributive justice with John Rawls’ conception of justice as fairness, and the principles of distributive justice that derive from it. Finally, we discuss methodological issues relative to, and implications of, the way of formalizing political principles introduced here. (shrink)

What is justice? Questions of justice are questions about what people are due, but what that means in practice depends on context. Depending on context, the formal question of what people are due is answered by principles of desert, reciprocity, equality, or need. Justice, thus, is a constellation of elements that exhibit a degree of integration and unity, but the integrity of justice is limited, in a way that is akin to the integrity of a (...) neighborhood rather than that of a building. A theory of justice is a map of that neighborhood. (shrink)

What is justice? Questions of justice are questions about what people are due. However, what that means in practice depends on the context in which the question is raised. Depending on context, the formal question of what people are due is answered by principles of desert, reciprocity, equality, or need. Justice, therefore, is a constellation of elements that exhibit a degree of integration and unity. Nonetheless, the integrity of justice is limited, in a way that (...) is akin to the integrity of a neighborhood rather than that of a building. A theory of justice offers individuals a map of that neighborhood, within which they can explore just what elements amount to justice. (shrink)

This paper examines John Rawls' renowned theory of justice, which outlines two principles of justice and their respective significance. It explores how Rawls' notion of equality aligns with the philosophical concept of equity, emphasizing that his call for citizen equality inherently incorporates fairness. Additionally, the paper discusses the application of Rawls' "Difference Principle" to India's reservation policy. Rawls' principles, which aim to support the worst-off in society, are reflected in India's system of reservations for marginalized groups, including (...) backward classes and differently-abled individuals, to promote equitable opportunities. However, the paper cautions that excessive reservations could limit opportunities for more privileged groups. Ultimately, it is argued that Rawls' concept of social justice has contributed to the promotion of social justice in India. (shrink)

Justice is a contested concept. There are many different and competing conceptions, i.e. interpretations of the concept. Different domains of justice deal with different fields of application of justice claims, such as structural justice, distributive justice, participatory justice or recognition. We present a formal conceptual structure of justice applicable to all these domains. We show that conceptions of justice can be described by specifying the following conceptual elements: the judicandum, the community (...) of justice including claim holders and claim addressees, their claims, the informational base for the assessment, the principles of justice, and on a more practical level, the instruments of justice. By specifying these conceptual elements of justice, it is possible to analyse and compare different conceptions of justice, to assess their internal consistency, to explore new definitions of justice in an analytical way, and to explicate an idea of justice in a manner that provides concrete links to the relevant context. (shrink)

This paper considers the goals and methods of theoretical sociology. The chief goal of theoretical work is a theory in two parts-postulates and predictions-the key challenge being to minimize the number of postulates and maximize the number and variety of predictions. The paper discusses the distinctive character of the sentences in each part of the theory and, in light of that bipartite structure, the two main activities of theoretical analysis: (i) speculative thinking, whereby the theorist identifies the starting ideas for (...) the postulates; and (ii) formal reasoning, whereby the theorist constructs the postulates and derives predictions from them. To illustrate the features of a theory and the tasks of theoretical analysis, the paper briefly sketches the theory of the distributive-justice force. (shrink)

The Jeu d'Adam—staged outside a church, sporting an energetic vernacular dialogue—was for Hardin Craig drama “caught in the very act of leaving the church,” as for E. K. Chambers it was a herald of secularization. O. B. Hardison's investigation into the origins of medieval drama has rendered that position untenable, but at the same time has left us with no explanation for this play's innovations. Scholars of the Chambers-Craig tradition at least did not imagine that style is without meaning or (...) that innovation is unmotivated. I want to suggest that the significance of the Adam's dramaturgic novelty can be traced to particular ideological disturbances created by particular developments in ecclesiastical life. The play appropriates the liturgy of public penance to reassert traditional authoritative forms at a time when the disposition of spiritual authority was being reimagined, both in formal theological discussions and in the concrete act of sacramental absolution. The world of historical experience, which Erich Auerbach saw in the realistic vernacular dialogue, finds a place in this play only to be put in its place; the innovations express in a new way the old idea that submission to the ecclesiastical hierarchy is a healthy way to live. In placing the action before the church doors the author made the church building not merely the context of the play , but also its subject. (shrink)

Should a liberal constitution constrain the racially discriminatory actions of state as well as nonstate employers? This essay answers in the affirmative, arguing that once we take seriously the right to nondiscrimination on the basis of race in terms of employment, we realize that such a constitution must constrain the actions of both. In doing so, this essay draws from John Rawls’s four-stage sequence, a sequence that suggests one way philosophical principles translate into constitutional design. A Theory of Justice (...) is the go-to theory for a wide range of political issues from a perspective of liberal theory, but scholars have paid less attention to it and comparative constitutional law. I take up this neglected inquiry by focusing on the distinction between the horizontal and vertical effect of a right not to be discriminated against on the basis of race in matters of employment. My analysis draws from the United States Constitution and the Constitution of the Republic of South Africa. A vertical effect constrains state power: a right to nondiscrimination is violated only when a state or public body discriminates on the basis of race. A horizontal effect constrains nonstate actors: a private employer may violate rights by discriminating on the basis of race. I argue that, in line with the South African Constitution, Rawls importantly adopts a horizontal effect of the right not to be discriminated against on the basis of race by ensuring formal equality of opportunity. His theory of justice suggests that a liberal constitution ought to constrain the racially discriminatory actions of both state and nonstate employers. This, in turn, represents an important response to racism that occurs in the private sphere. (shrink)

A correct understanding of Hart’s idea of justice and a detailed assessment of the connection between justice and law contributes to a better understanding of his legal-philosophical project. Always consistent with his argument on the separability between law and morality, Hart endorses an account of formal intralegal justice that is intimately connected to law, but not necessarily dependent upon non-legal principles of substantive justice. Hart’s theoretical commitment to a composite concept of formal justice (...) encompasses two elements: first, the imperative to treat like cases alike and different cases differently, and second, the underlying legal criteria that specify the relevant measure of likeness and difference. These elements of Hart’s theory of justice can be traced back to their doctrinal precedents in the texts of Aristotle, Sidgwick, Perelman, Ross, and Del Vecchio. Commentators and critics of Hart’s account of justice seem to agree that this account ought to be expanded by exploring its full effects on the foundations of Hart’s concept of law. When this is achieved, a third element of Hart’s intralegal justice emerges, namely, its rights-allocating function, which is deeply embedded in his account of the rule of recognition, his concept of a legal system, and his idea of law. (shrink)

John Rawls based his theory of justice, in the work of that name, on a ‘Kantian interpretation’ of the status of human beings as ‘free and equal’ persons. In his subsequent, ‘political rather than metaphysical’ expositions of his theory, the conception of citizens of democracies as ‘free and equal’ persons retained its foundational role. But Rawls appealed only to Kant’s moral philosophy, never to Kant’s own political philosophy as expounded in his 1797 Doctrine of Right in theMetaphysics of Morals. (...) I argue here that the structure of Kant’s political philosophy, with its categories of the innate right to freedom, private acquired right and public right, can clarify the relationship between Rawls’s two principles of justice and his scheme of basic liberties and primary goods. (shrink)

Aristotle’s soul is a first principle (an ‘efficient cause’) of every vital change in an animal, in the way that a craft is a cause of its product’s coming-to-be. We argue that the soul’s causal efficacy cannot therefore be reduced to the formal constitution of vital phenomena, or to discrete interventions into independently constituted processes, but involves the exercise of vital powers. This reading does better justice to Aristotle’s conception of craft as a rational productive disposition; and (...) it captures the soul’s continuous causal role as that which brings about all forms of vital change and underwrites their unity. (shrink)

Background: Theoretically, the principle of justice is strong in healthcare priorities both nationally and internationally. Research, however, has indicated that questions can be raised as to how this principle is dealt with in clinical intensive care. Objective: The objective of this article is to examine how significant others may affect the principle of justice in the medical treatment and nursing care of intensive care patients. Method: Field observations and in-depth interviews with physicians and nurses in (...) intensive care units (ICU). Emphasis was placed on eliciting the underlying rationale for prioritisations in clinical intensive care with particular focus on clinicians’ considerations when limiting ICU treatment. Results: Significant others could induce an unintentional discrimination of ICU patients. Family members who were demanding received more time and attention for both the patient and themselves. Patients’ and families’ status and position and/or an interesting medical diagnosis seemed to govern the clinicians’ priorities of patients and families—consciously as well as unconsciously. The clinicians emphasised that patient information given through families was important. However, patients’ preferences and values conveyed to clinicians through their families were not always taken seriously. This even applied in cases with very serious prognoses and an explicit patient wish to forego life-prolonging treatment. Conclusion: The principle of justice was violated when qualified attention was given to significant others, and through this also to patients. Attention given to significant others was influenced by the healthcare workers’ professional and personal values, attitudes and interests. (shrink)

This paper aims at addressing some questions considering the conflicting normative claims of partiality, i.e. to provide for the caring needs of the particular patient, and impartial claims of treating all patients with a relevant need equally. This ethical conflict between different conceptions of moral responsibilities within professional ethics relates to debates between an ethics of care and an ethics of justice. An ethics of care is a particularistic position that endorses some form of partiality, i.e. favouring persons to (...) whom one stands in particular relationships. This paper argues that also a professional ethics must endorse some kind of partiality at the clinical level of health care. In fact, consideration of care for particular patients is a prerequisite for giving proper and attentive care towards the individual patient. This paper will discuss how partial concerns might be balanced against claims of distributive justice within the frame of the formal principle of justice. It is concluded that there is an urgent need for the recognition of the consequences of macro-level decisions for the possibility of the discharge of moral responsibility on a clinical level of health care. This would mean that health care institutions should adapt for the possibility of a basic standard of proper care and attention for the individual patient. (shrink)

This article argues that Honneth’s ‘plural conception of justice’, founded on a theory of recognition, does not succeed in distancing itself from Rawls’ liberal theory of justice. The article develops its argument by evaluating three major objections to Rawls’ liberalism raised by Honneth in his recent articles on justice: namely, first, that the parties responsible for choosing principles of justice are too individualistic and their practical reasoning too instrumentalist; second, that by taking as its ‘object-domain’ the (...) negative liberty of persons, Rawls’ theory fails to promote the actual realization of liberty; and finally, that Rawls’ method of principle justification undermines the ‘priority’ of its Kantian ‘formality’ by presupposing a substantive commitment to a conception of individual good. Arguing that Honneth’s interpretation of Rawls’ theory contains important errors, the article concludes that both theories share the basic intention of securing for all citizens the material and institutional conditions for the actualization of otherwise merely formal liberties or, in Honneth’s terms, mutual self-realization. (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)

We suggest that a restorative justice critique of current retributive policy and practice may well be a starting point for the development of more just and more effective approaches to sentencing, both formal and informal, and to a more effective approach to reentry for currently incarcerated persons. While restorative justice principles acknowledge the debt owed by offenders to their victims and victimized communities, this is a debt met neither by inflicting harm on the offender nor by removing (...) the offender's rights as a citizen. As a different normative theory, the measure of justice in a restorative approach is the extent to which harm caused by crime is repaired. While restorative justice may therefore demand a lot of offenders, their supporters, and community members, it also provides for the opportunity for victim input and reparation. Most importantly, the normative theory of restorative justice provides a different currency of repair and healing that could begin to displace the currency of punishment that knows no limits. While a restorative metric would certainly have its own limits and guidelines, the metric of uniformity as the primary gauge of justice process could at least be supplemented with a metric of stakeholder participation, satisfaction, accountability, reparation, and peacemaking. (shrink)

This paper compares and contrasts three different substantive principles of justice for making health care priority-setting or “rationing” decisions: need principles, maximising principles and egalitarian principles. The principles are compared by tracing out their implications for a hypothetical rationing decision involving four identified patients. This decision has been the subject of an empirical study of public opinion based on small-group discussions, which found that the public seem to support a pluralistic combination of all three kinds of rationing principle. (...) In conclusion, it is suggested that there is room for further work by philosophers and others on the development of a coherent and pluralistic theory of health care rationing which accords with public opinions. (shrink)

This article aims to expound the principle of justice, as a fundamental value and as an immanent category of law, as well as one of the fundamental human rights, prescribed and guaranteed by a myriad of international instruments and documents. After a brief historical account, by focusing on Article 40 of the Magna Carta Libertatum, which states that: “To No One Will we Sell, To No One Will we refuse or delay, right or justice”, this article claims (...) to show the importance of incorporation of this principle in the provisions of the Magna Carta and its impact on the development of theory and legislation in the past and present. Moreover, the article intends to explore the extent of influence that the priciple of justice has on the functioning of the law in general. Since justice implicates the permanent and constant will to render each person his due, and this achieved through equality, it results that justice means being equal. In this context, the article will explore the concept of equality as a precondition of justice, as well as the conditions and modalities for its implementation. Having in mind that the principle of justice is closely linked to the principle of equity, because equity precedes justice, or more precisely, equity is considered a source of justice, this article seeks to articulate the essential distinctions between these two concepts by focusing on their methods, i.e. in their approach for putting the idea of equality into action. (shrink)

Given resource constraints in healthcare, demands justice and equity require the constant development of material principles for resource distribution. In many cases, such material principles are formulated as mid-level principles, well-adapted to handle healthcare distribution but suffering from aspects outside the healthcare context that affect their application. In healthcare, factors outside the healthcare system will sometimes affect patients’ equal opportunity to receive treatment and achieve health. Examples of such factors might include an individual’s economic means, the cost of drugs, (...) geography, etc. This article explores whether the formal equality principle could help us address such problems. It is argued that the traditional (thin) formal equality principle can aid in priority setting, both as a heuristic tool to aid in consistency and also in handling under-determined cases. However, it appears to be too ‘thin’ to handle problems caused by factors outside the healthcare context. In the article, I explore a more robust version of the formal equality principle and argue that such a principle can be used to address such cases. However, even a more comprehensive formal equality principle will need to consider whether some other actors have a moral responsibility to address the problem or whether the issue could be solved more effectively by others. Furthermore, such a principle needs to consider whether the opportunity cost of achieving ‘thick’ formal equality is acceptable, given the material principles of distribution. (shrink)

In recent years, several political theorists have argued that reasonable principles of justice are practice-dependent. In this paper it is suggested that we can distinguish between at least two main models for doing practice-dependent theorizing about justice, interpretivism and constructivism, and that they can be understood as based in two different conceptions of practices. It is then argued that the reliance on the notion of participants that characterizes interpretivism disables this approach from adequately addressing certain matters of (...) class='Hi'>justice and that a better way of developing the idea of practice-dependence can be found in a constructivism that starts from the Rawlsian idea of overlapping consensus, but which shifts the focus of that approach from societies to a more open-ended category of domains, and which understands the parties to a possible overlapping consensus as stakeholders in a certain set of interconnected practices. (shrink)

THE PAPER DEFINES AND DEFENDS A PRINCIPLE OF COLLECTIVE SELF-DETERMINATION AS ONE OF THE PRINCIPLES OF THE ORDERING OF A JUST SOCIETY. THAT PRINCIPLE SPECIFIES THAT INDIVIDUALS PARTICIPATE EQUALLY IN THE MAKING OF DECISIONS WHICH WILL GOVERN THEIR ACTIONS WITHIN INSTITUTIONS OF SPECIAL COOPERATION. THE PAPER ADOPTS THE STRATEGY OF ARGUING TO PRINCIPLES OF JUSTICE BY ASKING WHAT PRINCIPLES WOULD BE CHOSEN IN RAWLS' ORIGINAL POSITION. IT ARGUES THAT, CONTRARY TO THE THRUST IMPLICIT IN RAWLS AND OTHER (...) LIBERAL THINKERS, PERSONS IN THE ORIGINAL POSITION WOULD HAVE NO BASIS FOR DISTINGUISHING BETWEEN POLITICAL AND NON-POLITICAL INSTITUTIONS OF SOCIAL COOPERATION, AND THUS WOULD CHOOSE THE PRINCIPLE OF SELF-DETERMINATION DIRECTLY AS APPLYING TO ALL INSTITUTIONS AND ACTIVITIES OF SOCIAL COOPERATION. (shrink)

There is a major divide between the work of normative theorists and concrete climate action (or inaction) politics and policies. In this volume, authors tackle the strained relationships between principles of justice and climate politics by responding to real-world climate politics and policies, offering proposals and analyses that take concerns of feasibility seriously, and identifying immediate justice and feasibility concerns with recent proposals for climate action. Contributors look at questions of feasibility as they relate to specific international institutions (...) like the IPCC and UNFCCC, and widely discussed principles of climate justice, including backward-looking principles like polluter pays and forward-looking principles like ability to pay. Others explore the feasibility hurdles and justice concerns that challenge popular mitigation proposals. (shrink)

In the past decade, scholars such as Samuel Freeman, Martin O’Neill, Alan Thomas and others have argued that no matter how widely Rawls’s theory of justice (TJ) was understood as a defence of the welfare state (WS), the socio-economic system Rawls defends and always defended is property-owing democracy (POD). In this article I present the argument that Rawls did not defend POD in TJ. However, while the claim that it was POD the socio-economic system implied by the principle (...) of difference generated heated reactions by defenders of the WS, the argument I raise differs from most of them. In the article I maintain that, for Rawls, principles of justice underdetermine the choice of social systems, and that although this is true of both principles, it is especially true of the difference principle, whose ability to arbitrate between different social and economic policies is limited. I show how the attempt to uniquely determine the set of social and economic policies authorized by the difference principle clashes with what Rawls explicitly states in TJ and contrasts with central aspects of his sociological and political conception of socio-economic decision-making. Although my aim is to show that the difference principle itself does not discriminate among socio-economic systems, this does not preclude that additional reasons can help in narrowing the range of socio-economic systems allowed. With reference to the ideal of social union that Rawls expounds in the third part of TJ, I argue that TJ does, in fact, offer additional reasons to appraise the WS as preferable to POD. I maintain that the centrality Rawls attributes to the social unity of a just society provides the basis for an understanding of Rawls’s position towards POD after TJ. (shrink)

Rights define the prevailing relations that constitute a community. They are in turn defined by the character of a given mode of production, and as that changes so too the system of rights. The rights that comprise ‘human rights’ evolved in the transition from feudalism to capitalism and represent the principles of the emerging world order in the 18th and 19th centuries. Only in the aftermath of World War II with the exhaustion or defeat of the European states and Japan (...) was it possible to declare these same principles as belonging to the whole world equally and as intrinsic to all humans - yet within national frameworks. The accumulation of capital on a global scale, however, soon began to undermine the national practice of these human rights. By the end of the 1980s the construction of regional or global ‘enabling frameworks,’ quasi-states for capital, detached from any formal or legitimate means of countervailing political leverage, made human rights appear increasingly like anachronisms. An increasingly violent usurpation of the Universal Declaration of Human Rights and other forms of rights around the world followed. In the absence of a legitimizing set of principles for this new global economy, a growing need for a rationale to govern by fiat becomes the central problem of the day. (shrink)

This chapter develops a ``nesting'' model of deontic normative principles (i.e., principles that specify moral constraints upon action) as a means to understanding the notion of a ``fundamental normative principle''. I show that an apparently promising attempt to make sense of this notion such that the ``real'' or ``fundamental'' demands of justice upon action are not constrained by social facts is either self-defeating or relatively unappealing. We should treat fundamental normative principles not as specifying fundamental constraints upon action, (...) but as specifying basic criteria for comparatively evaluating and ranking possibilities. (shrink)

Recent years have witnessed an effort to explicate the concept of explanatory power in a Bayesian framework by constructing explanatory measures. It has been argued that those measures should not violate the principle of explanatory justice, which states that explanatory power cannot be extended “for free.” I argue, by formal means, that one recent measure claiming to be immune from explanatory injustice fails to be so. I end by concluding that the explanatory justice criticism can be (...) dissolved, given a natural interpretation of the concept of negative explanatory power. (shrink)

As Alfandre and colleagues describe in “Between Usual and Crisis Phases of a Public Health Emergency: The Mediating Role of Contingency Measures”, efforts to maintain standards of care durin...

Príspevok je zameraný na problém spravodlivosti Johna Rawlsa v diele Teória spravodlivosti. Obsah práce je koncipovaný ako analýza dvoch princípov spravodlivosti, pričom sa zameriava na ich ťažiskové aspekty. Príspevok sa snaží vyjasniť význam dvoch zásad spravodlivosti prostredníctvom skúmania obsahového zloženia prvého i druhého princípu. V súvislosti s druhým princípom je cieľom nielen objasniť význam férovej rovnosti príležitostí, ale i vzťah druhého princípu s princípom efektívnosti a vzťah demokratického chápania spravodlivosti s princípom rozdielnosti. Zámerom príspevku je tiež poukázať na princíp distribúcie, (...) a to nielen z teoretickej perspektívy. V tejto súvislosti chce text upozorniť aj na prepojenosť distribúcie a zásluh. Pre Rawlsa je dôležité upozorňovať na lexikálnu nadradenosť prvého princípu, preto text neobchádza ani túto skutočnosť. Zároveň s tým verbalizuje rozdiel medzi oboma fundamentálnymi princípmi. (shrink)

This essay applies the principle of justice as fairness to the issue of same-sex marriage. I will outline Rawls’s theory of justice, including the original position and the veil of ignorance as the means by which choosers craft a just state. In considering whether same-sex marriage should be permissible, I argue that a just society, formulated in the Rawlsian context of justice as fairness, should allow them. I assert that gays and lesbians do count as equal (...) citizens because they possess the minimum requirements of the capacity for a sense of justice, a conception of the good, and the ability to be cooperating members of society. Furthermore, within the original position gays and lesbians will be represented because choosers do not know their sexual orientation because it is one of the individual characteristics that are withheld behind the veil. Since the choosers do not know their sexual orientation, they will be unable to use that information in their construction of what counts as a just state comprised of free and equal citizens. Because the family, and the institution of marriage as a primary manifestation of the family, is one of the major social institutions within the basic structure, limitations must be carefully scrutinized. (shrink)

In this paper I argue that in order to secure the commitment of believers in reasonable comprehensive doctrines to political liberalism a third principle of justice needs to be adopted in the Original Position. Rawls acknowledges that neutral legislation by the liberal state may negatively affect some reasonable comprehensive doctrines, and I offer a third principle of justice to help alleviate this problem. This principle, which I believe is in keeping with the United States constitutional (...) history especially where church-state relations are concerned, maintains that a constitutional regime should, insofar as possible, avoid adopting rules with harmful effects upon those comprehensive doctrines which satisfy the conditions of reasonable pluralism. (shrink)

Distributive justice deals with allocations of goods and bads within a group. Different principles and results of distributions are seen as possible ideals. Often those normative approaches are solely framed verbally, which complicates the application to different concrete distribution situations that are supposed to be evaluated in regard to justice. One possibility in order to frame this precisely and to allow for a fine-grained evaluation of justice lies in formal modelling of these ideals by metrics. Choosing (...) a metric that is supposed to map a certain ideal has to be justified. Such justification might be given by demanding specific substantiated axioms, which have to be met by a metric. This paper introduces such axioms for metrics of distributive justice shown by the example of needs-based justice. Furthermore, some exemplary metrics of needs-based justice and a three dimensional method for visualisation of non-comparative justice axioms or evaluations are presented. Therewith, a base worth discussing for the evaluation and modelling of metrics of distributive justice is given. (shrink)

The article grapples with the question how we can think over principles of justice in a horizon radically modified in comparison with the times of the French revolution. Our approach insists on two corollary questions, in tune with Kant’s critical philosophy. What does it mean to speculate on such principles and how do these interconnect in a transcendental guise with the basic legal concepts of modern legal culture? How does practical Reason work together with the intellect and with reflective (...) judgement, in order to prescribe or restate principles of justice? (shrink)

John Rawls assumes that in the original position, under the veil of ignorance, after bargaining amongst each other, free, equal, moral and rational persons would make a rational decision to accept the principles of justice as fairness and thus the principles are established. Critics, however, question the authenticity and validity of this justification strategy. When rational individuals take the principles of justice as an original agreement, it is not a real contract. Rawls’s conception of justice as fairness (...) is just a personal notion, some individuals may accept it, but it is impossible to be accepted by all human beings in a real world. Therefore there is a justification/acceptance paradox of those principles which are the core of his political philosophy. So how should we justify those principles? Its answers may be provided not in the light of a philosophical justification but of a scientific one. (shrink)

John Rawls assumes that in the original position, under the veil of ignorance, after bargaining amongst each other, free, equal, moral and rational persons would make a rational decision to accept the principles of justice as fairness and thus the principles are established. Critics, however, question the authenticity and validity of this justification strategy. When rational individuals take the principles of justice as an original agreement, it is not a real contract. Rawls’s conception of justice as fairness (...) is just a personal notion, some individuals may accept it, but it is impossible to be accepted by all human beings in a real world. Therefore there is a justification/acceptance paradox of those principles which are the core of his political philosophy. So how should we justify those principles? Its answers may be provided not in the light of a philosophical justification but of a scientific one. (shrink)

In my recent article, I addressed the question of whether a potential categorical exclusion of decisionally impaired patients from non-therapeutic medical research would be inaccordance with the Principle of Justice as Fairness. I came to the conclusion that a categorical exclusion of decisionally impaired persons from relevant research projects may collide with Rawls’s understanding of Justice as Fairness. Derek Bell has criticized my paper by denying that it is legitimate to apply Rawls to this bioethical problem. In (...) my restatement I try to show that an extrapolation of John Rawls’s thought to such bioethical cases is possible, because Rawls himself has written that his orientation towards decisionally non-impaired persons is an idealized situation that allows extrapolations. In a second part I try to show that Bell hasroughly misunderstood my concept of “presumed consent” which I make a prerequisite for the legitimisation of research on decisionally impaired persons. In using advance consent as a proposal for resolving the problem, Bell has indirectly confirmed my approach because he is using a similar construct of consent, which operates with similar hypotheses and probabilities of error. I see here no categorical difference between Bell’s conclusion and my discussion. Thus, Bell’s reply does not represent a refutation of my thoughts, but rather it is a para phrased confirmation of my central theses. I conclude by showing the relevance of Rawls, pointing out that the discussion between Bell and me illustrates how Rawls’s concept of reflective equilibrium is an appropriate approach to finding a solution to this bioethical problem. (shrink)

An ethical conflict arises when we must perform research in the interest of future patients, but that this may occasionally injure the interests of today''s patients. In the case of cognitively impaired persons, the question arises whether it is compatible with humane healthcare not only to treat, but also to use these patients for research purposes. Some bioethicists and theologians have formulated a general duty of solidarity, also pertaining to cognitively impaired persons, as a justification for research on these persons. (...) If one examines this thesis from the theory of justice according to John Rawls, it is revealed that such a duty of solidarity cannot necessarily be extrapolated from Rawls' conception of justice. This is at least true of Rawls' difference principle, because accordingto the difference principle only those measures are justifiable which serve the interest of the respective least well off. Those measures which would engender additional injury for the least well off could not be balanced by any utility according to Rawls. However, John Rawls' difference principle is subordinate to the first principle, which is that each person has an equal right to the most extensive basic liberty compatible with the same liberty for others. These primary goods are determined by the freedom and integrity of the person. This integrity of decisionally impaired persons would be in danger if one would abstain from research and thus forego the increase in knowledge related to their disease. Thus one could conclude, at least from Rawls' first principle, that society must take on a duty to guarantee the degrees of freedom for cognitively impaired persons and thus also support the efforts for their healing. (shrink)

Cohen’s hostility to Rawls’ justification of the Difference Principle by social facts spawned Cohen’s general thesis that ultimate principles of justice and morality are fact-insensitive, but explain how any fact-sensitive principle is grounded in facts. The problem with this thesis, however, is that when facts F ground principle P, reformulating this relation as the "fact-insensitive" conditional “If F, then P” is trivial and thus explanatorily impotent. Explanatory, hence justificatory, force derives either from subsumption under more general (...) principles, or precisely exhibiting value in light of relevant (actual or hypothetical) facts. In examples where no subsumption occurs, actual facts trivially become hypothetical facts in "fact-insensitive" conditionals, an empty formalism. Indeed, Rawls’ grounding of principles of justice in “conditions of life” can easily be reformulated as a conditional principle “sensitive” only to hypothetical such conditions, and thus formally fact-insensitive in Cohen's sense, for all Cohen’s ire against Rawls’s grounding.Moreover, any plausible “ultimate fact-insensitive principle” must be intricately qualified, which tacit ceteris paribus clauses mask. Each qualification implies prioritisation of one principle over another in conceivable circumstances, and wherever the now qualified principle is given scope, that too implies prioritisation over competing principles in typical circumstances. Any principle is thus sensitive to conceivable circumstances of application, as recognised by more sophisticated intuitionisms. Non-trivial ultimate principles – luck egalitarianism, act utilitarianism, etc. - require defense, which inevitably involves showing how they best interpret and respond to facts about human needs, goals, and capacities in predictable circumstances. Finally, the substantive debate between Rawls and Cohen about which facts are relevant to the DP is only obscured by the doctrine of fact-insensitivity. (shrink)

G.A. Cohen argues that Rawlsian constructivism mistakenly conflates principles of justice with optimal rules of regulation, a confusion that arises out of how Rawls has us think about justice. I use the concepts/conceptions distinction to argue that while citizens may reasonably disagree about the substance and demands of justice, some principled convergence may be possible: we can agree upon regulative principles consistent with justice, as each of us understands it. Rawlian constructivism helps us find that principled (...) convergence, and this too is a conception of justice. (shrink)

I suggest that the social justice issues raised by Internet regulation can be exposed and examined by using a methodology adapted from that described by John Rawls in 'A Theory of Justice'. Rawls' theory uses the hypothetical scenario of people deliberating about the justice of social institutions from the 'original position' as a method of removing bias in decision-making about justice. The original position imposes a 'veil of ignorance' that hides the particular circumstances of individuals from (...) them so that they will not be influenced by self-interest. I adapt Rawls' methodology by introducing an abstract description of information technology to those deliberating about justice from within the original position. This abstract description focuses on computing devices that users can use to access information and information networks that information devices use to communicate. The abstractness of this description prevents the particular characteristics of the Internet and the computing devices in use from influencing the decisions about the just use and regulation of information technology and networks. From this abstract position, the principles of justice that the participants accept for the rest of society will also apply to the computing devices people use to communicate, and to Internet regulation. (shrink)

In the face of limited resources during the COVID-19 pandemic response, public health experts and ethicists have sought to apply guiding principles in determining how those resources, including vaccines, should be allocated.

The concept of benefit sharing pertains to the act of giving something in return to the participants, communities, and the country that have participated in global health research or bioprospecting activities. One of the key concerns of benefit sharing is the ethical justifications or reasons to support the practice of the concept in global health research and bioprospecting. This article evaluates one of such ethical justifications and its meaning to benefit sharing, namely justice. We conducted a systematic review to (...) map the various principles of justice that are linked to benefit sharing and analysed their meaning to the concept of benefit sharing. Five principles of justice have been shown to be relevant in the nuances of benefit sharing in both global health research and bioprospecting. The review findings indicate that each of these principles of justice provides a different perspective for a different benefit sharing rationale. For example, commutative justice provides a benefit sharing rationale that is focused on fair exchange of benefits between research sponsors and communities. Distributive justice produces a benefit sharing rationale that is focused on improving the health needs of the vulnerable research communities. We have suggested that a good benefit sharing framework particularly in global health research would be more beneficial if it combines all the principles of justice in its formulation. Nonetheless, there is a need for empirical studies to examine the various principles of justice and their nuances in benefit sharing among stakeholders in global health research. (shrink)