Justice, Misc

A defense of the modern family, in historical perspective, this book reconstructs political theory with the family in an important and honorable place. By reviewing critically both traditional and contemporary thought on the most special relationships—as well as current public policy issues relating to them—the author addresses concerns shared by professional and lay constituencies. Noting Tocqueville's observation of the American obsession with reevaluating and remodeling the family, Professor Abbott pleads for a balanced view. The development of liberal ambivalence toward the (...) family, along with radical hostility toward it, is clearly traced. For the most part the family was safely incorporated into political theory from Aristotle to Cicero and onward to Augustine and Aquinas until modern times. Then came the challenges of the rational individualists and the romantic individualists, followed by the attacks of social and psychological radicals. Some traditional criticisms of the family are shown to be soundly based, albeit less devastating than the critics supposed. As expanded in contemporary life, however, the great critics' revisionist models take on a fantastic quality. Here we are introduced to pleas for the "eroticization of children" and for freedom from "tyranny of reproductive biology." Proposals for new bureaucratic support structures appear with great frequency: professional guardians, children's camps, cloning hospitals. And people try to act out the roles prescribed for them by theorists who attempted "to set the solitary in new and different units." Liberals and radicals, the author argues, are infatuated with a "rights model," which "takes as its basis self-sufficient rational human beings"—at the expense of "solidarity among human beings." A tradition exists, Professor Abbott holds, that facilitates reconciliation between the modern family and the political order: pluralism. Pluralism is an attempt to balance individual autonomy and mutuality, decentralization and stratification, reform and tradition, reason and sentiment. Public policy in respect to schools, housing, health care, working conditions, and recreation should be designed to foster a pluralistic family-centered society. In line with this thesis the author offers a fresh perspective on such burning issues as abortion, sexual preference, alternative lifestyles, child abuse, and children's rights. _The Family on Trial _therefore is relevant to the concerns of social and behavioral scientists, the helping professions and the clergy, teachers and parents. (shrink)

The following theses are defended. Conflict has importantly valuable functions, but we obviously need to limit its destructiveness. The efficacy of reasoning together in resolving or restraining conflict is limited; it needs to be supplemented by procedures such as negotiation, compromise, and voting. Despite the urgency of justice, when the resolution or limitation of a conflict needs to be negotiated, the best attainable outcome will often not seem completely just to all parties, and some claims of justice, as seen by (...) the parties, may need to be subordinated to other moral considerations. (shrink)

The review argues that Lovett’s theory of domination suffers from a problem. Lovett is aware of the problem and bites a fairly large bullet in response to it. What he does not seem aware of is that the problem can be avoided by opting for an account of welfare that he unfortunately ignores, despite the fact that it would serve his purposes well.

Recent works by feminist and social epistemologists have carefully mapped the contours of epistemic injustice, including gaslighting and prejudicial credibility deficits, prejudicial credibility excesses, willful hermeneutical ignorance, discursive injustices, contributory injustice, and epistemic exploitation. As we look at this burgeoning literature, attention has been concentrated mainly in four areas in descending order of emphasis: phenomena of epistemic injustice themselves, including the nature of wrongdoings involved, attendant consequences and repercussions, individual and structural changes for prevention or mitigation, and restorative, restitutive, or (...) retributive responses. This project urges greater attention to the last of these, and to that end offers a relational approach to epistemic justice drawing upon Margaret Walker’s work on moral repair and reparative justice. In developing and enacting better epistemic practices, how can such practices be made meaningfully restorative: not only recognizing the prospects for epistemic improvement, but responding to the perpetration and experience of epistemic injustice with effective epistemic amelioration? (shrink)

The present work is to be a critique of Rawls’ Veil of Ignorance as well as putting forth an alternative analytical tool when constructing societies known as the L’echelle Naturelle. My paper hopes to argue that inequalities in a society are not only essential in society contrary to Rawls’ Egalitarian ideology, but do in fact contain equality so long as the autonomy of the citizen is fully exercisable. I contend that institutions such as government and their extensions namely the law, (...) have debilitated the exercisability of autonomy. The consequence of that is an artificial hierarchy monopolized by a minority rather than a natural hierarchy where every citizen is a means unto themselves. The phenomenon of a natural hierarchy that is made possible by unchained autonomy is what the L’echelle Naturelle hopes to expound upon in the forthcoming work. (shrink)

I focus on the mutual advantage conception of justice and on a related Humean argument according to which “the circumstances of justice” obtain only when there is a conflict of ends, a suitable level of scarcity, and rough equality of power. I add to the challenges facing the argument by using a Millian illustration whose significance has not been appreciated in prior discussions of the circumstances of justice to show that, contrary to a key premise of the Humean argument, restraining (...) ground rules concerning entitlement can be mutually advantageous even if there is no conflict of ends or rough equality of power. It follows from my reasoning that, if justice has a place and point when restraining ground rules concerning entitlement would be mutually advantageous, the circumstances of justice can obtain without a conflict of ends or rough equality of power. (shrink)

Jonathan Wolff and Timothy Hinton have criticized a version of liberal egalitarianism, often associated with Ronald Dworkin, for promoting an account of social justice that fails to treat everyone with respect. This paper analyses Wolff’s and Hinton’s critiques, particularly with regard to how notions of self-respect and respect-standing are deployed. The paper argues that the analyses of both Wolff and Hinton display affinities with a dualist approach to social justice. A dualist approach theorizes respect as an aspect of both distributive, (...) socioeconomic injustice and cultural injustice, rather than of the former only, which is typical of liberal egalitarianism. Nancy Fraser is widely associated with such a dualist framework, so her version is used to assess Wolff’s and Hinton’s work. The paper argues that both make use of ideals and commitments from the dualist approach to justice in their respect objection. However, despite their evident sympathy for the notion of cultural injustice, both continue to theorize respect primarily as an aspect of distributive justice. Thus, for cultural justice theorists, Wolff’s and Hinton’s critiques of Dworkinian justice may leave something to be desired. (shrink)

This work addresses limitations in current approaches to rhetorical historiography and provides fresh philosophical ground that responds to these limitations. By integrating philosophical ideas, a philosophy of communicative engagement is formed and illustrated with descriptions of three women’s successful efforts to change the face of society.

Richard J. Arneson version 7/27/99 Is having a disability more like being a member of a racially stigmatized group or like lacking a talent? Both analogies might be apt. The Americans with Disabilities Act stresses the former analogy. The framing thought is that people with disabilities are objects of prejudice and prejudiced behaviors which wrongfully exclude them from participation in important social practices such as the labor market. Think for example of a blind person whose job applications are always automatically (...) rejected because she is blind and without any consideration of her aptitude for this or that specific job. Such a person suffers wrongful discrimination and is denied equality of opportunity. (shrink)

The aim of this paper is to explore and question the potential of John Rawls’s theory of social justice as a tool for building a critical theory of society. My claim will be that Rawls’s approach to social theory cannot provide such a tool; as it will turn out, it faces very deep problems when faced with the task becoming a critical theory of society. Such problems originate mainly in the cognitive and epistemic structure of the “original position”. This, I (...) believe, is bound to pose problems in the future for those of us who seek to make a politically radical use of the legacy of Rawlsian theory (see, e.g., Van Parijs, 1995 or Callinicos, 2000). By a critical theory of society, I mean a theory which aims not at describing the social world “as it is” in order to explain or understand it, but at describing the social world in such a way that the description itself triggers forces for social change within the social world being described. This is, indeed, the meaning of “critical”: to describe a state of affairs in such a way as to throw it into crisis by that very.. (shrink)

This article argues that diverse theorists have reasons to theorize about fairness in nonideal conditions, including theorists who reject fairness in ideal theory. It then develops a new all-purpose model of ‘nonideal fairness.’ §1 argues that fairness is central to nonideal theory across diverse ideological and methodological frameworks. §2 then argues that ‘nonideal fairness’ is best modeled by a nonideal original position adaptable to different nonideal conditions and background normative frameworks (including anti-Rawlsian ones). Finally, §3 argues that the parties to (...) the model have grounds to seek a variety of remedial social, legal, cultural, and economic ‘nonideal primary goods’ for combating injustice, as well as grounds to distribute these goods in an equitable and inclusive manner. Finally, I illustrate how the model indexes the nonideal primary goods it justifies to different nonideal contexts and background normative frameworks, illustrating why diverse theorists should find the model and its output principles attractive. (shrink)

Theorists have long debated whether John Rawls’ conception of justice as fairness can be extended to nonideal (i.e. unjust) social and political conditions, and if so, what the proper way of extending it is. This paper argues that in order to properly extend justice as fairness to nonideal conditions, Rawls’ most famous innovation – the original position – must be reconceived in the form of a “nonideal original position.” I begin by providing a new analysis of the ideal/nonideal theory distinction (...) within Rawls’ theoretical framework. I then systematically construct a nonideal original position, showing that although its parties must have Rawls’ principles of ideal justice and priority relations as background aims, the parties should be entirely free to weigh those aims against whatever burdens and benefits they might face under nonideal conditions. Next, I show that the parties ought to aim to secure for themselves a special class of nonideal primary goods: all-purpose goods similar to Rawls’ original primary goods, but which in this case are all-purpose goods individuals might use to (A) promote Rawlsian ideals under nonideal conditions, (B) weigh Rawls’ principles of ideal justice and priority relations against whatever burdens and benefits they might face under nonideal conditions, and (C) effectively pursue their most favored weighting thereof. I then defend a provisional list of nonideal primary goods which include opportunities to participate effectively in equitable and inclusive grassroots reform movements guided by a series of substantive aims. Finally, I briefly speculate on how the parties to the nonideal original position might deliberate to principles of nonideal justice for distributing nonideal primary goods, suggesting that those goods should be distributed in proportion to unjust disadvantage. (shrink)

This commentary contends that Larry May’s Hobbesian argument for limitations on sovereignty and lawmaking in Limiting Leviathan does not succeed. First, I show that Hobbes begins with a plausible instrumental theory of normativity. Second, I show that Hobbes then attempts, unsuccessfully—by his own lights—to defend a kind of non-instrumental, moral normativity. Thus, I contend, in order to successfully “limit the Leviathan” of the state, the Hobbesian must provide a sound instrumental argument in favor of the sovereign limiting their actions and (...) lawmaking. But, I argue, neither Hobbes nor May provides such an argument. (shrink)

Omar Khadr was arrested at the age of 15 by the U.S military and has remained in custody in Guantanamo for 8 years. Today, he plead guilty to five war crime charges. Despite stating in open court last summer that he would not plead guilty, today he muttered a confession. In accordance with the plea bargain, Khadr plead guilty to murder, attempted murder, conspiracy, providing material support to terrorists, and spying. Following this, a jury imposed the harshest possible sentence, 40 (...) years imprisonment. Khadr may receive parole after eight years. The first year of this sentence will be served in Gauntanamo, following which he may be repatriated. The government of Canada does not have to repatriate Khadr, nor is parole guaranteed. Rather than hypothesizing outcomes, I want to discuss the case philosophically. (shrink)

Early in the 1980s, a new category of crime appeared in the criminal law lexicon. In response to what was said to be an epidemic of prejudice-motivated violence, Congress and many state legislatures passed a wave of 'hate crime' laws that required the collection of statistics and enhanced the punishment of crimes motivated by certain prejudices. This book places in socio-legal perspective both the hate crime problem and society's response to it. From the outset, Jacobs and Potter adopt a skeptical (...) if not critical stance. They argue that hate crime is a hopelessly muddled concept and that legal definitions of the term are riddled with ambiguity and subjectivity. Moreover, no matter how hate crime is defined, the authors find no evidence to support the claim that the US is experiencing a hate crime epidemic—nor that the number or rate of hate crimes is at an historic zenith. (shrink)

In the early 1980s, a new category of crime appeared in the criminal law lexicon. In response to concerted advocacy-group lobbying, Congress and many state legislatures passed a wave of "hate crime" laws requiring the collection of statistics on, and enhancing the punishment for, crimes motivated by certain prejudices. This book places the evolution of the hate crime concept in socio-legal perspective. James B. Jacobs and Kimberly Potter adopt a skeptical if not critical stance, maintaining that legal definitions of hate (...) crime are riddled with ambiguity and subjectivity. No matter how hate crime is defined, and despite an apparent media consensus to the contrary, the authors find no evidence to support the claim that the United States is experiencing a hate crime epidemic--instead, they cast doubt on whether the number of hate crimes is even increasing. The authors further assert that, while the federal effort to establish a reliable hate crime accounting system has failed, data collected for this purpose have led to widespread misinterpretation of the state of intergroup relations in this country. The book contends that hate crime as a socio-legal category represents the elaboration of an identity politics now manifesting itself in many areas of the law. But the attempt to apply the anti-discrimination paradigm to criminal law generates problems and anomalies. For one thing, members of minority groups are frequently hate crime perpetrators. Moreover, the underlying conduct prohibited by hate crime law is already subject to criminal punishment. Jacobs and Potter question whether hate crimes are worse or more serious than similar crimes attributable to other anti-social motivations. They also argue that the effort to single out hate crime for greater punishment is, in effect, an effort to punish some offenders more seriously simply because of their beliefs, opinions, or values, thus implicating the First Amendment. Advancing a provocative argument in clear and persuasive terms, Jacobs and Potter show how the recriminalization of hate crime has little value with respect to law enforcement or criminal justice. Indeed, enforcement of such laws may exacerbate intergroup tensions rather than eradicate prejudice. (shrink)

Abstract: Contra John Rawls, G. A. Cohen argues that the fundamental principles of justice are not constrained by the limits of our nature or the nature of society, even at its historical best. Justice is what it is, even if it will never be realized, fully or at all. Likewise, David Estlund argues that since our innate motivations can be justice-tainting, they cannot be a constraint on the right conception of justice. Cohen and Estlund agree that if the attempt to (...) implement a certain conception of justice is likely to result in widespread harm or injustice, then it should not be implemented, but that this does not entail that the conception itself is false. I argue that (i) there is no way to judge the soundness of a principle of justice independently of all psychological facts , and the effects that the principle is likely to have if it is implemented; (ii) a principle of justice that, if implemented, makes it hard or impossible for individuals committed to justice to lead happy and worthwhile lives in a good society, even if the circumstances are favorable to living justly, cannot be sound; (iii) without the constraints noted in (i) and (ii), there can be no reason to reject racist, sexist, or other wrongheaded principles of justice that have been advanced as sound over the years, principles that even Cohen and Estlund would reject. In short, justice is justice only if kept within the limits of human nature. (shrink)

The paper adopts philosophical research methodologies of conceptual clarification, critical analysis, and extensive argumentation. It attempts to jointly employ African metaphysical and epistemological grounds to address the problem of finding appropriate justification for reparations for Africa on the issue of past slavery and slave trade. The paper states that the crux of the problem is how to formulate a coherent theoretical framework, which provides a strong connection between the direct victims of slavery and slave trade and their descendants in Africa, (...) on the basis of which the latter could justifiably claim for restitutive justice against the wrong done to the former. Western traditional accounts usually define reparations such that the concept only intelligibly applies to moral relations among contemporaries, not between the departed and the living. This reasoning, therefore, forecloses any moral relations between the departed and the living, making it morally unjustifiable for the latter to claim for restitutive justice on behalf of the former. However, this study re-thinks the concept of reparations, using two core areas of African philosophy. African metaphysics recognizes that an experiential being is ontologically connected to the other, that is, any other experiential being and spirits, inclusive of ancestors. This relationship also invariably closes the epistemological gap between the experiential and non-experiential worlds, making them a unity within African cosmology. Situated within the present study, the foregoing shows that the living could justifiably claim for restitutive justice on behalf of the departed, the direct victims of slavery and slave trade. (shrink)

The question of whether desert depends on institutions or institutions on desert continues to divide politicians and political theorists, particularly in disputes over the justification of the welfare state. Even though it is a significant question with direct relevance for issues of economic justice, little has been done so far to evaluate the various positions in dispute and to make explicit the concepts involved. In this paper, I first present the main senses in which the concepts of desert, dependence and (...) institution are used by different desert theorists and I argue that conflicting claims concerning desert's pre/institutional nature may turn out to be compatible and similar claims, inconsistent, when the senses of these concepts are made explicit. Secondly, I identify the senses of 'desert', 'dependence' and 'institution' which are most appropriate for the debate. Thirdly, I argue that, from the perspective of this conceptual framework, it is not possible to decide whether or not desert depends on institutions, unless the framework is supplemented by a more precise specification of the concept of institution. (shrink)

In many jurisdictions the list of factors for which anti-discrimination law applies has been expanded to include sexual orientation. As a result, moral and legal difficulties have arisen for religious organizations whose basic beliefs include the belief that sexual acts between persons of the same sex are immoral. In light of these difficulties, is anti-discrimination law of this sort unjust? Recently John Finnis has argued that, as commonly applied, such anti-discrimination law is disproportionate and therefore unjust. In this essay, I (...) critically examine Finnis’s argument, and argue that, on account of the conception of disproportionateness that is employed, it does not succeed. So as to enable the argument from disproportionateness to succeed, I develop and defend a modified conception of disproportionateness. -/- . (shrink)

In this essay we criticise Rainer Forst's attempt to draw a connection between power and justification, and thus ground his normative theory of a right to justification. Forst draws this connection primarily conceptually, though we will also consider whether a normative connection may be drawn within his framework. Forst's key insight is that if we understand power as operating by furnishing those subjected to it with reasons, then we create a space for the normative contestation of any exercise of power. (...) He calls this the noumenal understanding of power. Against the conceptual connection between power and justification, we argue that (i) on most plausible accounts of political freedom, some freedom-restrictions commonly attributed to the successful exercise of power would perplexingly count as failures of power on Forst's view, and that (ii) on the most plausible account of reason-recognition, namely an appropriateness of response account, a justification relation is only a sufficient but not necessary condition for recognition. Against the normative connection, we argue that (iii) Forst can establish the existence of a right to justification only if he reconsiders the transcendental aspirations of his theory. (shrink)