In December 2003, the members of the European Union (EU) met in Brussels for a summit that had the potential to become a turning point in history. The agenda for the meeting was to adopt a constitution for Europe in the wake of the European enlargement scheduled for May 2004. However, European nations were not able to resolve their differences over undecided issues such as voting, foreign policy decision- making, budget deficit rules, and whether to mention God in the constitution. (...) The most severe disagreements occurred over the voting system proposed by the draft constitution, which envisioned a move towards population-adjusted voting rights. In the old arrangements agreed upon in Nice in 2000, members had roughly the same amount of votes independent of population. (shrink)

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should (...) therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort isa law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency. (shrink)

This article integrates empirical and normative discussions about why global economic inequalities matter in critically examining an approach known as derivative global egalitarianism (DGE). DGE is a burgeoning perspective that opposes excessive global economic inequality not based on the intrinsic value of equality but inequality's negative repercussions on other values. The article aims to advance the research agenda by identifying and critically evaluating four primary varieties of DGE arguments from related but distinct literatures, which span a number of disciplines, including (...) economics, international relations, and political philosophy. Overall, DGE offers a number of persuasive arguments as to why current levels of global inequality are of concern, but aspects of DGE beg further philosophical and empirical examination. By situating DGE within the wider theoretical and empirical contexts, this article provides resources for its critical assessment and theoretical development. (shrink)

John Rawls's account of Kantian constructivism is perhaps his most striking contribution to ethics. In this paper, I examine the relation between Rawls's constructivism and its foundation in Kantian intuitions. In particular, I focus on the progressive influence on Rawls's approach of the Kantian intuition that the substance of morality is best understood as constructed by free and equal people under fair conditions. Rawls's focus on this Kantian intuition, I argue, motivates the focus on social contract that grounds both his (...) accounts of the original position and of reflective equilibrium. Critics, including Onora O'Neill and Larry Krasnoff, object that Rawls's view distorts various aspects of Kantian moral reasoning. I argue that these objections (i) exaggerate the distinctions between Kant's and Rawls's decision procedures and (ii) reflect an unnecessarily constricted view of Kant's moral thought. (shrink)

Traditionally, transitional justice has referred to that field of theoretical scholarship that proffers recuperative strategies for political societies divided by a history of violence. Through the establishment of truth commissions, public confessionals and reparative measures, transitional justice regimes have sought to establish restorative conditions that might help reconcile historical antagonists both to each other and to the trauma of their shared past. Because of some of the theoretical lapses in this scholarship some have turned recently to the field of radical (...) democratic and ‘new pluralist’ thought – and especially to agonistic literature – to foreground a theory of post-conflict reconciliation based not on the principles of the sublimation of difference, but rather the perpetual deferral of accord. This essay works both to underscore that effort, as well as to problematize it. Through unorthodox readings of Giorgio Agamben, Jean Améry and Sheldon Wolin, the essay argues that an emphasis on messianicity as the temporal mode of political repair is ultimately less productive for what I call an agonistics of reconciliation than a more nuanced approach to what Wolin calls ‘fugitive democracy’. Where the former is allied with a problematic politics of mutual respect, the latter affirms a more germane politics of abiding resentment. In the end, a startling conclusion is drawn from reading agonistic reconciliation through Wolin: democracy may be a political experience reserved for scenes of transitional justice alone. (shrink)

How does public discussion contribute to the reasonableness with which power is exercised in a democracy? Contemporary answers to this question (such as formulated by Rawls or Habermas), are often based upon two interconnected preconceptions. These are, 1. the idea that the value of public discussion lies primarily in the fact that citizens can reach a reasonable consensus through argumentation and discussion and, 2. the belief that the exercise of power is legitimate only if it is determined by a reasonable (...) consensus among citizens. In this sense, 'reasonable consensus among citizens' eliminates, under ideal conditions, the 'autonomy' of the exercise of power. However, these ideals of democracy appear to conflict with certain aspects of democratic society; aspects, moreover, which we tend to value quite highly. I therefore advance an alternative account of the reasonableness of power in democratic societies; one which acknowledges both the characteristically unlimited scope of public discussion in democratic society and the fact that such discussion rarely or perhaps even never ends in a general consensus. In order to elucidate the democratic character of society we must explain the relationship between discussion and power in such a way that we understand both the need for discussion and the necessity of an autonomous exercise of power. (shrink)

In this article, I argue that political philosophers like Rawls and Habermas that characterize their methods as non-metaphysical or postmetaphysical depend on constitutions in order to provide a positive and public reference point for democratic participants. Michelman shows how this dependency is problematic, by contending that disagreement about the meaning of constitutional rights and the indeterminacy of their application undermines the rationality of consensus. I argue that his concerns raise serious problems for Rawls’ theory. Habermas, on the other hand, has (...) some tools to deal with Michelman’s critique — namely, his distinction between discourses of justification and application, and his idea of constitutional patriotism — but he must concede that much of the substance of constitutional democracy is basically up for grabs. I conclude by suggesting why these consequences are less threatening than they may seem. (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)

In A Theory of Justice, John Rawls’s first argument for the inherent stability of a well-ordered society seeks to establish that citizens of such a society would come to share the same or similar senses of justice. In his late work, Rawls significantly revised his second argument for stability, but he repeatedly pronounced himself satisfied with the first. However, the pluralism that so drastically reoriented Rawls’s mature theory also creates destabilizing forces absent in Theory. These destabilizing forces suggest that a (...) shared sense of justice among citizens will be more difficult to achieve. This paper examines Rawl’s late theory in detail to reconstruct how Rawls, despite his stated satisfaction, addressed the destabilizing effects of pluralism through revisions to his first argument for stability. It argues that in his late theory Rawls no longer claims that a well-ordered society could achieve inherent stability. Instead, a more fragile stability is achieved through a disciplined commitment to publ... (shrink)

How should we understand the categorical distinction Aristotle draws between praxis and poesis? If this distinction gains its meaning only in a specific social and cultural context, what does this tell us about another famous Aristotelian distinction, namely, the distinction he draws between two types of justice: corrective and distributive? In particular, what is the orienting role of this distinction (and what should we make of this) in accounts of justice based on Kantian right and accounts based on Rawls’ principles (...) of justice? (shrink)

In order to make some headway on the debate about whether Kant was a constructivist, nonconstructivist, or instead defends a hybrid view that somehow entirely sidesteps these categories, I attempt to clarify the terms of the debate more carefully than is usually done. First, I discuss the overall relationship between realism and constructivism. Second, I identify four main features of Kantian constructivism in general. Third, I examine three rival versions of metanormative Kantian constructivism, what I’ll call axiological, constitutivist, and rationalist (...) constructivist. I argue that Kant is best seen as a rationalist constructivist. I conclude by arguing that although it’s a constructivist view, this reading avoids the main pitfalls of traditional Kantian constructivism. In doing so, it helps us to achieve a satisfying rapprochement between constructivist and non-constructivist readings of Kant. (shrink)

Cuando dos agentes reclaman legítimamente un mismo bien, una solución posible al conflicto consiste en que el agente con el reclamo de mayor peso normativo obtenga derecho a todo el bien. Pero existe otra solución, que consiste en que el agente con el reclamo de mayor peso obtenga derecho sólo a una parte bien –la parte mayor–, mientras que el agente con el reclamo de menor peso obtenga derecho al menos a una parte del bien –aunque la parte menor–. En (...) este artículo propongo un argumento a favor de utilizar pro tanto la solución para todos los conflictos distributivos. Luego muestro que las razones para utilizar valen para menos casos de los que parece. (shrink)

As is well known, John Rawls opposes the idea and policy of basic income. However, this paper posits that his view of self-respect and activity could accommodate its implementation. Rawls lists the social basis of self-respect in social primary goods as the most important good, but does not assume that it is derived from wage labor alone. It appears that his theory of justice aims to criticize the work-centered (wage-labor) society and to overcome it. Besides, as Rawls desires, for our (...) work to be meaningful and our life worthwhile, we should institutionalize basic income because it can improve workers’ bargaining power and their attitude toward work, in addition to enhancing their leisure time. In this paper, by considering the normative relationship between meaningful work, worthwhile life, and self-respect from a Rawlsian perspective, I inquire into the potential of basic income in his well-ordered society. (shrink)

The article considers the relationships among three arguments that purport to establish the intrinsically contradictory or paradoxical nature of the modern project aiming at the equal consideration of all. The claim that the inevitable historical insertion of universal-egalitarian norms leads to always particular and untransparent interpretations of grammatically universal norms may be combined with the claim that the logic of determination of political communities tends to generate exclusions. The combination of these two claims lends specific force to the third argument (...) according to which equal consideration perpetually requires the non-egalitarian project of understanding individuals on their own terms. Hence, taking off from a recent debate between Christoph Menke and Jürgen Habermas, I argue that the former is right to diagnose an aporetic self-reflection in egalitarian universalism, while agreeing with the latter about the indispensability of deliberative democratic frameworks for the defence of both egalitarian and non-egalitarian norms. Key Words: Theodor Adorno • deliberative democracy • Jacques Derrida • egalitarianism • equality • Jürgen Habermas • Christoph Menke • singularity • universalism. (shrink)

Journal of Social Philosophy, EarlyView.

Rawls’ primary legacy is not that he standardised a particular view of justice, but rather that he standardised a particular method of arguing about it: justification via reflective equilibrium. Yet this method, despite such standardisation, is often misunderstood in at least four ways. First, we miss its continuity across his various works. Second, we miss the way in which it unifies other justificatory ideas, such as the ‘original position’ and an ‘overlapping consensus’. Third, we miss its fundamentally empirical character, given (...) that it turns facts about the thoughts in our head into principles for the regulation of our political existence. Fourth, we miss some of the implications of that empiricism, including its tension with moral realism, relativism, and conservatism. (shrink)

Hardly anyone denies that (nearly) all human beings have equal moral status and therefore should be considered and treated as equals. Yet, if humans possess the property that confers moral status upon them to an unequal degree, how come they should be considered and treated as equals? It has been argued that this is because the variations in the degree to which the status‐conferring property is held above a relevant threshold are contingencies that do not generate differences in degrees of (...) moral status. Call this the contingency argument for the basis of moral equality. In this paper, I reject the contingency argument. Instead, I develop an attitude‐based account of the basis of moral equality: according to this account, the basis of moral equality lies in a fitting, basic, and independent moral attitude which is owed to human beings qua moral status‐holders, and provides a coherent and plausible explanation for why the variations above the threshold for moral status do not matter. (shrink)

This article makes four claims. First, that the analytic/Continental split in political theory stems from an unarticulated disagreement about human nature, with analytics believing we have an innate set of mostly compatible moral and political inclinations, and Continentals seeing such things as alterable products of historical contingency. Second, that we would do better to talk of Continental-political-theory versus Rawlsian-political-philosophy, given that the former avoids arguments over principles, whilst the latter leaves genuine analytic philosophy behind. Third, that Continentals suffer from a (...) lack of such arguments, even by their own lights, whilst Rawlsians suffer from inconsistencies within the thought-patterns on which their principles depend. Fourth, that there is an alternative method – ‘normative behaviourism’ – that at least tries to move beyond the problems of both approaches, whilst sharing an idea of ‘praxis’ with the first, and an idea of deriving-principles-from-existing-judgements with the second. (shrink)

In this article, I argue that a common view of Habermas’s theory of public reason, which takes it to be similar to Rawls’s ‘proviso’, is mistaken. I explain why that mistake arises, and show that t...

The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s response to the financial crisis. The assistance offered to the (...) most burdened states was not as an attempt to arrive at fair shares but an attempt to remedy the losses unfairly caused by the mistakes made by the Eurozone as a whole, when designing its basic architecture. (shrink)

In his provocative book War and Self-Defense, David Rodin criticizes attempts to justify national defense based on an analogy between the individual and the state. In doing so, he treats state personality as an analogy to the personality of the individual. Yet the state possesses the key attributes of moral personality, including a conception of the good life and a sense of justice. The state's unobservable — but nevertheless real — moral personality means that it also possessed the right to (...) defend the continued existence of that personality against an attack. Subject to the same constraints that are placed on individuals, such as necessity and proportionality, the state possesses the right to national defense based on its own personality. (shrink)

The article revisits two basic questions of political theory posed by Jon Elster. First, should the political process be defined as private or public, and second, should its purpose be understood instrumentally or intrinsically? Having posed these questions, Elster arrives at three views of politics: social choice , republican and discourse theory . I argue for a fourth view , and explain Elster's omission of this model by referring to his underlying paradigm of politics, that is, as will formation. The (...) main thesis in Elster's article is about whether the process of will formation should be relegated to the market mechanism or dealt with via deliberative forums. I reject this paradigm and argue instead for politics as jurisdiction. This notion of politics is concerned with the question of how both market and forum processes of will formation should be institutionalized. Defining politics as jurisdiction strongly improves the plausibility of the missing fourth model of democratic will formation, as a depiction of democratic will formation as private in its process and intrinsic in its purpose illustrates the importance of distinguishing between two levels of democracy: namely, the civil level of will formation and the political level of jurisdiction. (shrink)

Insights from social science are increasingly used in the field of applied ethics. However, recent insights have shown that the empirical branch of business ethics lacks thorough theoretical grounding. This article discusses the use of the Rawlsian methods of wide reflective equilibrium and overlapping consensus in the field of applied ethics. Instead of focussing on one single comprehensive ethical doctrine to provide adequate guidance for resolving moral dilemmas, these Rawlsian methods seek to find a balance between considered judgments and intuitions (...) concerning particular cases on the one hand and general principles and theories on the other. In business ethics this approach is promissing because it enables decision-making in a pluralist context with different stakeholders who often endorse different or even conflicting cultural and moral frameworks without giving priority to any of them. Moreover, the method is well founded in political theory. A taxonomy of different kinds of applications is developed, and classified according to the purpose, the content, and the type of justification. On the basis of this taxonomy an inventory of 12 recent applications is made. In terms of the purpose and content of the method the applications are rather diverse. Two conceptual obstacles for applying Rawlsian methods are identified, viz. inclusiveness and the communitarian objection that people have to become detached from their personal life. It is found that methodological questions, such as the question how to retrieve the relevant empirical data, are scarcely addressed in the literature. To advance the use of empirical approaches in general, and that of Rawlsian approaches in particular, it is important not only to use empirical data but to use methodological insights from social sciences in order to further advance the field of empirical ethics. It is recommended that stakeholders be given a more active role in the assessment and justification of these methods. (shrink)

Against arguments that suggest that Rawls’s notion of reasonability is ‘obscure’ and ‘unclear’ I argue in this essay that the idea of reasonability in the later Rawls can be defended in three ways. First, it can be shown that reasonability is fundamental to the architectonic of the later work. Reasonability, and the subordination of reason to reasonability, is fundamental to the later (post-1980) writings. Second, it can be shown that reasonability is not necessarily a vague term as many have claimed. (...) Third, it can be shown that reasonability is fundamental to what Rawls calls the three major new ideas of Political Liberalism: overlapping consensus; the reconception of the priority of the right over the good; and the idea of public reason. (shrink)

Those who criticize as well as those who nowadays defend constructivism in metaethics consider John Rawls’s constructivism to be incomplete. According to them, his ontological agnosticism makes evident this incompleteness; I question this widely accepted charge. I propose an alternative interpretation, according to which Rawls’s agnosticism is the effect of his metaethics rather than a lack of metaethics. Thanks to this interpretation, I question the originality and attractiveness of Rawls’s metaethics. My claim is that Rawls’s metaethics adequately captures the specific (...) historical nature of political norms. (shrink)

It is often claimed that in normative political theory political imagination should remain unaffected by real-world contingencies: our idea of how the world “ought to be” should be independent from how the world “actually is”. According to the practice-dependent thesis, instead, “[t]he content, scope, and justification of a conception of justice depends on the structure and form of the practices that the conception is intended to govern”. This methodological approach conceives the relationship between theory and practice as an interplay: normative (...) theory applies to practice, but practices are also able to affect the content of normative theory. In this paper, I argue that the interplay between theory and practices that the practice-dependent method generates has not been fully understood. Though it may – at a superficial look – appear as a method compliant with the status quo, I will show that this method implies an idea of political theory as an activity of continuous critical engagement. Given an extended account of the method, political imagination has boundaries but these are not fixed nor easilydefinable: the real-world fact that constrains practice-dependent principles is the point and purpose of the practice they are meant to apply to, but this fact in itself is partly shaped and critically assessed by the theorist. (shrink)

There is very little study of Latin American Philosophy in the English-speaking philosophical world. This can sometimes lead to the impression that there is nothing of philosophical worth in Latin American philosophy or its history. The present article offers some reasons for thinking that this impression is mistaken, and indeed, that we ought to have more study of Latin American philosophy than currently exists in the English-speaking philosophical world. In particular, the article argues for three things: (1) an account of (...) cultural resources that is useful for illuminating the fact of cultural differences and variations in cultural complexity, (2) a framework for understanding the value of philosophy, and (3) the conclusion that there is demonstrable value to Latin American philosophy and its study. (shrink)

Authority figures permeate our daily lives, particularly, our political lives. What makes authority legitimate? The current debates about the legitimacy of authority are characterised by two opposing strategies. The first establish the legitimacy of authority on the basis of the content of the authority’s command. That is, if the content of the commands meet some independent normative standard then they are legitimate. However, there have been many recent criticisms of this strategy which focus on a particular shortcoming – namely, its (...) seeming inability to account for who can legitimately command whom. This is the basis of the second strategy, which attempts to characterize the normative relationship that underlies and makes possible authoritative commands. The central point of Part I is that these two strategies are, in fact, not opposed and both raise questions which a theory of legitimacy must answer. If this is the case, then we need to ask: how ought we to determine the legitimacy both of the content of commands as well as who can command whom? Part II will answer this question. Starting with the question of standing, I argue that we ought not to look for normative principles outside of the institutions in which authority is embedded. Rather, one ought to start by elaborating the ontology of institutions in which a sui generis form of normativity arises. A joint commitment account of social ontology provides the tools necessary to see how the direction obligations emerge concurrently with the formation of institutions. Similarly, the question of content can be answered by paying close attention to the social ontology of institutions. We need not look beyond the internal constitutive standards of the institution itself. The constitutive standards provide an internal criterion by which the legitimacy of commands can be established. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

SPANISH: La suposición de la obediencia estricta, y las demás características de la sociedad bien ordenada (SBO), es una considerable idealización que hace Rawls de las circunstancias históricas reales en las que existen las sociedades contemporáneas. De allí la objeción de que todo el proyecto de la justicia como equidad es inútil, pues de nada sirve saber cuáles serían los principios de la justicia para una SBO que solamente existe en la teoría. Los objetivos de este artículo son aclarar el (...) significado de la suposición de una SBO del que se ocupa una teoría ideal, indicar las relaciones de este tipo de teoría con la metodología de la filosofía política y la noción de factibilidad y reevaluar la objeción de inutilidad a la luz de estas consideraciones. Se propone una respuesta doble a la objeción de inutilidad derivada de obra de Rawls. ENGLISH: The assumption of strict obedience, and other features of the well ordered society (WOS), is a great idealization that Rawls does from the actual and historical circumstances in which contemporary societies exist. From there comes the objection according to which the whole Project of justice as fairness is just useless, for it has no purpose at all to know what would it be the principles of justice for a well ordered society that only exist in theory. The aims of this paper are to make clear the meaning of the well ordered society’s assumption - the society which the ideal theory takes care of -; to point out the links between this kind of theory and the methodology of the political philosophy and the notion of feasibility; and to look again the useless objection in the light of the above considerations. Before the useless objection, it is proposed a twofold answer that could be inferred from Rawls work. (shrink)

I argue that political liberals should not support the monopoly of a single educational approach in state sponsored schools. Instead, they should allow reasonable citizens latitude to choose the worldview in which their own children are educated. I begin by defending a particular conception of political liberalism, and its associated requirement of public reason, against the received interpretation. I argue that the values of respect and civic friendship that motivate the public reason requirement do not support the common demand that (...) citizens “bracket” their comprehensive commitments in politics. Rather, citizens should seek to enact policies the justification of which is compatible with the truth of their fellow reasonable citizens’ worldviews. Next I argue that no single educational approach can meet this standard of justification. Many believe that state sponsored education in a pluralist, liberal society ought to present multiple worldviews in a neutral way. I argue that this aspiration is unrealizable, and no other educational model will plausibly meet the justificatory demand. Finally, I address two objections to my favored alternative: that it may allow for the inculcation of disrespect, and that it violates children’s autonomy. Against the first, I claim that political liberals have no grounds for thinking that reasonable citizens will seek to inculcate disrespect. Finally, I argue that there is no conception of autonomy that can sustain the second. (shrink)