Theorizing Justice: Critical Insights and Future Directions - Softcover

Watene, Krushil

Softcover

ISBN 10: 1783484055 ISBN 13: 9781783484058

Publisher: Rli, 2016

Synopsis

A collection of essays that examine how discussions of justice are most usefully shaped in our world, rethinking how we theorize justice and principles of justice.

About this title

About the Author

Krushil Watene is Lecturer in Philosophy at Massey University, New Zealand. She is of Ngati Manu, Te Hikutu, Ngati Whatua Orakei, and Tongan descent.

Jay Drydyk is Professor of Philosophy at Carleton University, a former President of the International Development Ethics Association, and a Fellow of the Human Development and Capability Association. He is the co-author of Displacement by Development.


Contributors:
Tim Mulgan, Professor of Philosophy, University of Auckland, New Zealand, and University of St Andrews, UK; Colleen Murphy, Associate Professor of Philosophy, University of Illinois at Urbana-Champaign, USA; Amartya Sen, Thomas W. Lamont University Professor, and Professor of Economics and Philosophy, Harvard University, USA; Mozaffar Qizilbash, Professor of Economics and Philosophy, University of York, UK; Jay Drydyk, Professor of Philosophy, Carleton University, Canada; Thom Brooks, Professor of Law and Government, University of Durham, UK; Krushil Watene, Lecturer in Philosophy, Massey University, New Zealand; Rutger Claassen, Associate Professor of Ethics and Political Philosophy, University of Utrecht, Netherlands; Stacy J. Kosko Assistant Director MIDCM, University of Maryland, USA

Excerpt. © Reprinted by permission. All rights reserved.

Theorizing Justice

Critical Insights and Future Directions

By Krushil Watene, Jay Drydyk

Rowman & Littlefield International, Ltd.

Copyright © 2016 Krushil Watene and Jay Drydyk
All rights reserved.

ISBN: 978-1-78348-405-8

CHAPTER 1

Introduction

Krushil Watene

What does a fully just society and a fully just world look like? What role do concepts like equality, community, freedom, and rights play in answering these questions? Who is responsible for pursuing and realizing justice? Are there limits to the nature and extent of these responsibilities? Theories of social and global justice have dominated political philosophy for over forty years — since the publication of John Rawls's seminal 1971 work A Theory of Justice.

The general aim of such theories is to determine how social institutions ought to be arranged such that benefits and burdens are fairly distributed between those who make claims upon them. The aim is to formulate principles that capture these ideal distributive arrangements. Within this way of framing justice, theories come together and pull apart on a number of inter-related concerns, including: 1) how principles of justice are grounded, 2) what the principles ought to be, 3) how just arrangements are measured, 4) what the scope of justice should be, 5) what the relevant units of concern are, and 6) where responsibilities for pursuing and realizing justice ought to lay (Robeyns 2011).

Rawls provides us with the single most influential contemporary theory of justice — one that charted a new course for justice theorizing. By placing the equal worth of all citizens, participatory fairness, and agreement at the forefront of justifiable political principles, Rawls initiated a move away from the dominate theory at the time (Utilitarianism) to create space for an approach to justice which revived the social contract tradition.

Rawls takes questions of justice to arise between contracting parties under conditions of moderate scarcity and limited generosity (Rawls 1971, 126–30; Barry 1978). Contracting parties are individuals in possession of the two moral powers — a capacity for a sense of justice and a conception of the good — and they are situated as equal, rational, mutually disinterested, normal cooperating members of a society over a complete life (Rawls 1971, 3–41; 1993, 40–46; 2001, 18). Contractors are charged with choosing principles to govern a society that they will occupy, and which will regulate the terms of social cooperation between them. The principles are chosen by way of a hypothetical decision-making procedure (the original position) that models contractors under fair conditions (Rawls 1971, ch. 3). These conditions are made possible by the impartiality generated by the veil of ignorance. Behind the veil, individuals are ignorant of their places in society, their natural talents, and their conceptions of the good (Rawls 1971, 136–42). The veil forces contractors to consider the principles from the perspectives of both the most and the least advantaged in society.

According to Rawls, contractors would choose two principles to govern the 'basic structure of society' — social institutions, political constitutions and the like (Rawls 1971, 3). The liberty principle secures basic liberties and freedoms for all (Rawls 1971, 60). The difference principle stipulates that the distribution of primary goods (basic liberties, freedom of movement and choice, powers and prerogatives, income and wealth, the social bases of self-respect), must be: 1) to the maximum benefit of the least advantaged in society, and 2) attached to positions and offices open to all (Rawls 1971, ch. 2). Both principles are constrained by a concern for including diverse and irreconcilable differences within the (modern liberal) state (Rawls 1971, 24; 1993, lectures iv and v). The primary goods are those things that individuals require regardless of their differences. The principles of justice are those which individuals, even with wide-ranging and diverse conceptions of the good life, would agree to. In such a way, Rawls presents a theory that is politically liberal. That is, belonging to a family of liberal theories that (among other things) do not entail or endorse a particular conception of the good, or what Rawls refers to as a 'comprehensive philosophical doctrine' (Rawls 1971, 24, 446–52; 1993, 10, lectures iv and v; Freeman 2007).

A Theory of Justice is concerned with justice as it arises within a single society. For Rawls, it differs in important ways from international justice and the work that he presents in The Law of Peoples (Rawls 1999). Rawls's approach does not support the construction of a single original position that includes all members of the global community, but rather a second contract between representatives of 'peoples' (1971, 379). For Rawls, the domestic and international cases are different, and they require different contract situations (Freeman 2007). From this second hypothetical choice situation, different principles (to those in the domestic case) would be chosen to govern interactions between states. These principles broadly include: 1) respect for the freedoms and independence of peoples, 2) taking peoples as equal and party to their own agreements, 3) the right to self-defence but not war, 4) a duty of non-intervention, 5) to honour contracts made, 6) to conform to restrictions on the conduct of war, 7) to honour human rights, and 8) to assist peoples living under unfavourable conditions (Rawls 1999, 37). Rawls's approach to international justice is helpful for understanding his general strategy for dealing with other issues of justice that arise. Rawls first constructs a theory to deal with (what he takes to be) the fundamental case, and then extends the theory to issues that arise outside of that fundamental case at a later stage.

Of course, not all theories of justice take their lead from Rawls. Important and well known critiques of, and alternatives to, Rawls's theory come from libertarians (Nozick 1974), egalitarians (Anderson 1999; Cohen 1997), utilitarians (Harsanyi 1975; Singer 1972, 2002), communitarians (Sandel 1998; Taylor 1989), Marxists (Miller 1974; Nielsen 1980), and feminists (Okin 1987, 1989, 1994; see also Abbey 2013). Rawls's work does, however, remain the most prominent, with almost every aspect of his work built on, modified, and debated (see Freeman 2007, bibliography). Rawls's continuing prominence is most obvious in the recent rise in global justice theories that extend or modify his basic approach. Cosmopolitans remain at the forefront of these extensions and modifications (see, for instance, Beitz 1999; Brock 2009, 2015; Pogge 2008). Charles Beitz and Thomas Pogge were the earliest to contend that the proper application of Rawls to issues of global justice required that the original position be applied to the world as a whole. The same reasons which Rawls used to justify justice at the domestic level apply globally, since nationality (like race, gender, and social class) is also morally arbitrary. Many cosmopolitans advocate global principles of justice on these general grounds — with some extending Rawls's own domestic principles globally (see, for instance, Moellendorf 2002), and others arguing for new or modified principles (see, for instance, Brock 2009; Pogge 2008).

While most of the literature is concerned with global justice, there has also been engagement with other challenges that Rawls did not consider, either at all or in full. These issues include our obligations to future generations (see, for instance, Gosseries and Meyer 2009), our treatment of nonhuman animals (Sunstein and Nussbaum 2004), the inclusion of children (see, for instance, Kittay 1997; Macleod 2010; Nussbaum 2006), and the inclusion of those who suffer disabilities (Nussbaum 2006; Richardson 2006). While some theorists work on providing Rawlsian answers to these issues, others attempt to show that these challenges cannot be adequately dealt with within Rawls's framework. As such, these issues have generated discussion around the usefulness of Rawls's theory for dealing with challenges that stand outside of Rawls's fundamental case. They raise questions for the strategy of restricting justice to this fundamental case, and then dealing with these other issues at a later stage (see, for instance, Mulgan 2006).

One of the most recent, and comprehensive discussions of Rawls's treatment of secondary issues has come from Martha Nussbaum and presented in her Frontiers of Justice (Nussbaum 2006). Nussbaum develops an approach to justice informed by Aristotle and Marx. On her account, human beings have rich needs and come to form society based on the kinds of beings they are.

The person leaves the state of nature (if, indeed, there remains any use for this fiction) not because it is more mutually advantageous to make a deal with others, but because she cannot imagine living well without shared ends and a shared life. Living with and towards others, with both benevolence and justice, is part of the shared public conception of the person that all affirm for political purposes. (Nussbaum 2006, 158)

Not only do we come to form society based on our social and compassionate natures, but we do so as vulnerable, temporal, complex, and unequal (Nussbaum 2006, 69–81). In light of issues of disability, treatment of non-human animals, and nationality Nussbaum argues that her capabilities approach (based on this starting point) is better able to include and consider them. The 'classical theory of the social contract cannot solve these problems, even when put in its best form' because it is unable to ask the questions that these issues of justice raise (Nussbaum 2006, 3).

The social contract tradition conflates two questions that are in principle distinct. "By whom are society's basic principles designed?" And "for whom are society's basic principles designed?" ... The chosen principles regulate, in the first instance, their dealings with one another. ... But the "by whom" and the "for whom" questions need not be linked in this way. One might have a theory that held many living beings, human and even nonhuman, are primary subjects of justice, even though they are not capable of participating in the procedure through which principles are chosen. (Nussbaum 2006, 16)

Rawls's contracting conditions do not, and are not able to, include these issues of justice from the start. The fundamental case excludes them from the start. The design of society is flawed in its treatment of these cases. According to Nussbaum, this highlights the urgent need to develop alternative theories able to deal with these (and any other potential) challenges (Nussbaum 2006).

Even more recently, Amartya Sen has gone further than Nussbaum in an important critique of the way justice is theorized — advocating a move away from (what he calls) a 'transcendental approach' to justice, to a more 'comparative approach' (Sen 2006, 2008, 2009). Here, Sen characterizes justice theorizing (with a particular emphasis on Rawls) as transcendental in the sense that it aims to answer the question: what makes a society just? Sen reframes justice in a way that advances an approach to social and global justice that is an ongoing 'work in progress'. Sen's comparative approach asks: What would make society more or less just? Sen's critical insights for how justice theorizing is currently undertaken provides a new framework for theorizing justice. He gives us a different starting point for thinking about justice, and opens up a new debate on the purpose of theories of justice. Nussbaum and Sen press against and challenge the boundaries of justice theorizing in ways that open up space for the development of alternatives.

Like any book about contemporary justice theorizing, this book occupies space that Rawls's work created, and takes inspiration from Rawls's achievements. In particular, this collection draws inspiration from the way that Rawls was able to construct a theory and method that could re-ignite political philosophy and revolutionize how we theorize justice. Rawls's theory was a response to perceived deficiencies in utilitarianism, at a time when the relevance of political philosophy was uncertain, and when contemporary realities posed new problems requiring innovative solutions. Rawls's approach to justice advanced political philosophy in important and valuable ways — most significantly in the way that it showed that political philosophy remained relevant for our lives and our world.

Yet, over forty years after the publication of A Theory of Justice, we find that social and global realities present theories of justice with new challenges. Understanding what these new challenges are, and whether contemporary theories are in a position to respond to them, remains significant for the continued relevance of political philosophy for our lives and our world. Recognizing which new challenges call for new theories and approaches, and determining how they might be developed is urgently required. Contemporary political philosophy, and our ideas about justice, must be in a position to respond to this reality. While taking inspiration from Rawls, this book sees itself as building on work that initiates a move toward grounded justice theorizing, and to the development of alternative theories and approaches to justice.

This book has two general aims. The first (in part I) is to present some critical insights that provide us with ways and reasons to rethink justice theorizing. The critical insights are novel, innovative, and challenging. In some ways, they reimagine justice and raise serious doubts about contemporary theories of justice. In others they provide insights for how the development of new theories and approaches might be possible. The second aim (in part II) is to begin to construct a range of starting points for new discussions of justice based on new ideas, new perspectives, and new challenges. These future directions present ideas and perspectives that contemporary theories of justice overlook, and begin to show what justice theorizing might look like if it sought to take these ideas and perspectives seriously. The second section builds on the space that the first section creates, and develops pathways and conversations that take our ideas about, and understandings of, justice in new directions. This book brings fresh and unique insights to how contemporary and potential realities transform theories of justice, and shows how political philosophy might respond.

We open part I with a unique and innovative chapter by Tim Mulgan which brings a futuristic twist to reflections on contemporary theories of justice. Mulgan asks how future people living in a broken world (a world where Rawlsian favourable conditions no longer apply) might think about justice. In particular, he considers how people living in a broken world would respond to modern 'affluent' liberal notions of our rights and freedoms. A broken world perspective highlights the contingency of our theories of justice, and raises questions for the usefulness of our ideas about justice in the future. Such a perspective highlights the need for us to consider not only how our ideas about justice impact on the lives of future people, but also informs how we think about justice today. The chapter provides a novel way of theorizing justice, and raises important challenges for contemporary justice theorizing. An important implication is that reviewing the assumptions we make about justice (here and now) is likely to lead us to recognize that we need to develop alternative theories and approaches.

In the next chapter Colleen Murphy asks how justice applies to cases of wrongdoing in transitional contexts. An important insight is that in transitional contexts, justice often falls short of our ordinary understandings and expectations. On the back of this insight, Murphy argues that transitional justice is a distinctive kind of justice that stands outside of the conceptions of justice presently on offer. Such a conclusion raises serious questions for how we ought to frame justice in different contexts. To accommodate transitional contexts, we need a perspective of justice that is able to account for the various ways in which justice can be pursued and realized. In line with Mulgan, Murphy calls our attention to the need to rethink our conceptions of justice and to make room for the development of alternatives.

(Continues...)

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Edition details

• Publisher: Rli
• Publication date: 2016
• Language: English
• ISBN 10: 1783484055
• ISBN 13: 9781783484058
• Binding: Paperback
• Number of pages: 210