This book develops a liberal theory of justice in exchange. It identifies the conditions that market exchanges need to fulfill to be just. It also addresses head-on a consequentialist challenge to existing theories of exchange, namely that, in light of new harms faced at the global level, we need to consider the combined consequences of millions of market exchanges to reach a final judgment about whether some individual exchange is just. The author argues that, even if we accept this (...) challenge, the effect of it is minimal. For different reasons, normatively problematic collective market outcomes like externalities, monopolies, violations of the Lockean proviso, inequality, and commodification do not pose particular problems to the justice of market exchanges. He outlines the various conditions a market exchange needs to fulfill to be considered just from a liberal background and in light of the new harms. Ultimately, he shows, it is not the market which is to blame; if we want to tackle issues like global warming or global economic injustice, we should not blindly follow the intuition that we best restrain and regulate markets. Commutative Justice is unique in its focus on justice in exchange rather than on end-state distributive justice, and the way in which it addresses the new harms we are facing today. It will be of interest to researchers and advanced students in philosophy, politics, and economics who are working on questions of economic justice. (shrink)

The Convention on Biological Diversity and its Nagoya Protocol established an Access and Benefit Sharing system between utilizers and providers of genetic resources. ABS is understood as a tool that should promote commutative justice between the involved parties. This essay discusses what exactly it is that is being exchanged in the ABS process. It critically analyses moral claims to compensation that are implied by the ABS system for genetic resources. It argues that with the exception of cases in (...) which traditional knowledge is involved, states are not automatically entitled to compensation in return for the utilization of genetic resources growing within their territory. However, biodiversity-rich states that make an effort to protect biodiversity must be compensated for complying with the requests set out in the CBD. Although it acknowledges that the NP is a step towards recognizing this claim, this essay argues that ABS is not the appropriate method to compensate for biodivers... (shrink)

행위의 도덕성을 그 행위가 야기하는 결과적 사태의 가치로 판단하는 결과주의에서 원칙적으로 제시하는 유일한 도덕적 판단 기준은 비개인적 관점에서 바라본 전체 세계의 총합적 가치의 최대화이다. 이에 따라 전체의 이익과 충돌할 때마다 개인은 자신의 이익과 신념, 삶의 기획을 모두 포기하도록 도덕적으로 요구되고, 결과적으로 각 개인의 개별성은 적절하게 존중받을 근거를 잃어버리게 된다. 본 논문에서는 결과주의가 도덕적 이론으로서 지닌 한계를 온전성, 분배 정의, 그리고 교환 정의의 측면에서 살펴본다. 우선 온전성의 측면에서, 자신의 신념과 가치관에 따라 온전한 삶을꾸려가야 할 개인은 결과주의적 원칙 하에 전체의 선을 위해 (...) 필요할 때마다 자신의 이익이나 삶의 기획을 포기하도록 도덕적으로강요되며, 따라서 내적으로 분열된 삶을 살게 된다. 둘째, 분배 정의의 측면에서 결과주의는 개인과 사회의 관계를 왜곡시켜 개인이독립된 개별자가 아니라 전체 사회의 선을 위해 기능하는 부품이되게 하는데, 이러한 ‘전체의 선’은 특히 좋음의 관계적 개념에 근거하여 볼 때 공허하거나 부차적인 것으로 드러날 수 있다. 마지막으로 결과주의는 개인 간의 주고받음의 관계에서 손해와 이익이발생할 때 각 당사자가 자신의 손해를 적절하게 보상받아야 한다는 교환 정의의 원칙을 적절히 수용하지 못하는데, 이 교환 정의의원칙은 각 개인의 개별성의 존중을 위해서 뿐 아니라 공동체의 유지를 위해 반드시 필요한 원리이다. (shrink)

The main aim of this paper is to challenge the validity of the distinction between legal justice and social justice. It is argued that what we usually call legal justice is either an application of the more fundamental notion of social justice to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of (...) social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about the proper relationship between these two concepts. Two views about the social justice/legal justice dichotomy are of particular importance and will provide the focus for the argument: this dichotomy is sometimes identified with a classical distinction between distributive and commutative justice and sometimes with the distinction between substantive and procedural justice. (shrink)

How can we determine what are just boundaries or just criteria for inclusion or exclusion in contemporary states, nations, peoples, or other 'communities of justice'? As Barbieri demonstrates, recent theories of justice have failed to grapple squarely with this fundamental problem, either wholly ignoring it, or approaching it, inadequately, in terms of distributive or commutative justice, or simply declaring the problem insoluble. Developing a clear understanding of the peculiarities of constitutive justice, Barbieri contends, is a (...) task that has important implications for political philosophy as it bears on topics such as citizenship, migration, multiculturalism, self-determination, and the drafting of new constitutions. To this end, Constitutive Justice critically discusses some present approaches that promise to shed light on constitutive questions involving inclusion and the ethics of boundaries; provides an analysis of some of the central topics that plausible normative theories of constitutive justice will need to address; and develops the author's own constructive account. (shrink)

The welfare state raises questions concerning the just distribution of benefits. The proceeds from tort liability and insurance supplementing or replacing such liability are benefits that must be included in this context. The author argues that neither distribution based solely on the needs of various persons injured nor considerations of economic efficiency are sufficient. Commutative justice must be considered relevant as well. The ultimate valuations cannot be justified by rational arguments alone but such arguments must be taken into (...) account in order to reach legitimate results. (shrink)

For persons serving life-without-parole (LWOP) sentences in California, a commutation usually offers them the sole glimpse of hope for release from prison. While governors were reluctant to consider any sentence reductions from 1975 to 2016, commutations—including those for LWOP—have become a more frequent occurrence since. Yet, little is still known about how governors have justified reducing a sentence that initially offered no prospect of release from prison. Given the apparent change in practice, themes emerging from the content of 177 gubernatorial (...) commutation summaries granted to persons serving LWOP sentences between 2017 and 2021 are analyzed in this paper. Through open coding, rehabilitative indicators (programming and institutional conduct) emerged as necessary preconditions for a commutation, while retributive factors (a reassessment of the nature of the crime and the prerogative to adjust excessive prison sentences or to correct sentencing errors) complemented sentence reductions. The findings expose the ethical issues that arise from an LWOP sentence and the subsequent commutation. More specifically, they shed light on the commitment offenses underlying commuted LWOP sentences and raise questions regarding the penal objectives that are supposed to be accomplished with permanent imprisonment. (shrink)

Two criteria, one for distributive and one for commutative justice are formulated, the latter applying to cases of free cooperation. Both criteria follow Aristotle's idea of proportional equality which in the first case is equality in the fulfillment of legitimate claims, in the second case equality of the gains derived from cooperation. The theory of social welfare functions is employed in the definition of the two criteria, but such functions are applied only to morally or legally justified interests. (...) A theory of justice only has to say how to satisfy conflicting legitimate claims, it is argued, but not what interests are justified in some given context. (shrink)

Two criteria, one for distributive and one for commutative justice are formulated, the latter applying to cases of free cooperation. Both criteria follow Aristotle's idea of proportional equality which in the first case is equality in the fulfillment of legitimate claims, in the second case equality of the gains derived from cooperation. The theory of social welfare functions is employed in the definition of the two criteria, but such functions are applied only to morally or legally justified interests. (...) A theory of justice only has to say how to satisfy conflicting legitimate claims, it is argued, but not what interests are justified in some given context. (shrink)

One of the most troubling aspects of dealing with past injustice in the former East Block is the conflict between positive law and law as the expression of higher principles of justice. In his Die Metaphysik der Sitten, Kant attempts to give content to, and place limitations on, what one may reasonably call "law". The purpose of this paper is to examine Kant's theories of commutative justice in a state of nature and distributive justice in a (...) civil state in an effort to define principles that are binding for every legal system. The paper examines two sets of four cases, namely 1) equity, necessity, pardons and duels; and 2) gifts, loans, bona fide purchasers and oaths, where Kant establishes limitations on state power with respect to the individual and to the society of individuals as a whole. Kant's legal system reveals itself to be a system devoted to liberal individualism and the maximum of protection of individual liberties. Einer der am meisten beunruhigenden Aspekte beim Umgang mit vergangenem Unrecht im früheren Ostblock besteht in dem Konflikt zwischen positivem Recht einerseits und Recht als Ausdruck höherer Prinzipien der Gerechtigkeit andererseits. In seinem Werk Die Metaphysik der Sitten versucht Kant, Inhalt und Grenzen dessen zu bestimmen, was man vernünftigerweise als "Recht" bezeichnen kann. Die Aufgabe dieses Beitrags besteht darin, Kants Theorien kommutativer Gerechtigkeit im Naturzustand sowie distributiver Gerechtigkeit im bürgerlichen Zustand zu untersuchen, um auf diese Weise Prinzipien zu ermitteln, die für jedes Rechtssystem bindend sind. Es werden dabei zwei Gruppen von je vier Fällen näher betrachtet, und zwar 1) Billigkeit, Notstand, Duell und Gnadenerweis sowie 2) Schenkung, Leihe, Gutglaubenserwerb und Eidesleistung, in denen Kant der staatlichen Macht im Hinblick auf das Individuum und die Gesellschaft der Individuen insgesamt Grenzen zieht. Kants Rechtssystem erweist sich hier als ein System, das dem liberalen Individualismus und einem maximalen Schutz individueller Freiheit verpflichtet ist. (shrink)

Ethical challenges to certain aspects of research on human subjects are not uncommon; examples include challenges to first-in-human trials (Chapman in J Clin Res Bioethics 2(4):1–8, 2011), certain placebo controlled trials (Anderson in J Med Philos 31:65–81, 2006; Anderson and Kimmelman in Kennedy Inst Ethics J 20(1):75–98, 2010) and “sham” surgery (Macklin in N Engl J Med 341:992–996, 1999). To date, however, there are few challenges to research when the subjects are competent and the research is more than minimal risk (...) with no promise of direct benefit. The principal reason given for allowing research that is more than minimal risk without benefit is that we should respect the autonomy of competent subjects. I argue that though the moral intuitions informing respect for autonomy are sound, there is another set of intuitions regarding what we take to be just treatment of another when one agent knowingly causes or allows suffering on another agent. I argue that concerns generated by commutative justice serve as limitations on permissible research. I highlight our intuitions informing this notion of justice by appealing to work done on theodicy; what counts as a morally sufficient reason for God to allow suffering in humans is applicable also to the researcher-subject relationship. I conclude that all human subjects who are exposed to more than minimal risk research should enjoy the same actual protections (e.g., subpart D) as those given subjects who cannot consent. (shrink)

La justice dont il est question ici est la justice dans l’échange ou justice commutative selon la tradition issue d’Aristote. Cette justice qui s’exprime dans le juste prix s’établit à partir d’une discussion entre les propriétaires prenant part à l’échange. Cette discussion relève d’une logique de l’analogie. Pour les parties dans un échange, la justice n’est pas une égalité mais seulement une qualité entre personnes vers laquelle on se dirige par comparaison avec une égalité (...) entre quantités. (shrink)

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)

One of the core values to be applied by a body reviewing the ethics of human research is justice. The inclusion of justice as a requirement in the ethical review of human research is relatively recent and its utility had been largely unexamined until debates arose about the conduct of international biomedical research in the late 1990s. The subsequent amendment of authoritative documents in ways that appeared to shift the meaning of conceptions of justice generated a great (...) deal of controversy. Another difficulty has been that both the theory and the substance of justice that are applied by researchers or reviewers can be frequently seen to be subjective. Both the concept of justice — whether distributive or commutative — and what counts as a just distribution or exchange — are given different weight and meanings by different people.In this paper, the origins and more recent debates about the requirement to consider justice as a criterion in the ethical review of human research are traced, relevant conceptions of justice are distinguished, and the manner in which they can be applied meaningfully in the ethical review of all human research is identified.We also explain the way that these concepts are articulated in, and the intent and function of, specific paragraphs of the National Statementon Ethical Conduct in Human Research (2007). The National Statement identifies a number of issues that should be considered when a human research ethics committee is reviewing the justice aspects of an application. We provide guidance to researchers as to how they can show that there is a fair distribution of burdens and benefits in the participant experience and the research outcomes. We also provide practical guidance to researchers on how to think through issues of justice so that they can demonstrate that the design of their research projects meets this ethical requirement. (shrink)

La justice dont il est question ici est la justice dans l’échange ou justice commutative selon la tradition issue d’Aristote. Cette justice qui s’exprime dans le juste prix s’établit à partir d’une discussion entre les propriétaires prenant part à l’échange. Cette discussion relève d’une logique de l’analogie. Pour les parties dans un échange, la justice n’est pas une égalité mais seulement une qualité entre personnes vers laquelle on se dirige par comparaison avec une égalité (...) entre quantités. (shrink)

This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. (...) The paper argues that stabilizing the distinction is worthwhile and that this can only be accomplished by the introduction of positive allocation schemes. (shrink)

Pour les tenants de l’égalitarisme du maximin, le contexte intergénérationnel constitue un triple défi. Primo, ce que requiert le maximin intergénérationnel ne se confond-il pas avec l’interdiction de la désépargne posée par une conception commutative de la justice comme réciprocité indirecte? Secundo, ne sommes-nous contraints de prendre au sérieux, plus qu’ailleurs, les préoccupations aggrégatives des utilitaristes afin d’éviter une « stagnation éternelle dans la misère » et ainsi de renoncer au maximin? Tertio, n’est-ce pas un contexte où égalitarisme (...) et maximin ne diffèrent pas dans leurs conséquences pratiques? L’A. répond par la négative aux trois questions. Il montre en particulier en quoi l’égalitarisme du maximin s’écarte d’une règle de non-désépargne. Il indique la manière dont il importe de penser la justice entre générations de manière proprement distributive et il examine la manière dont le défi « aggrégatif » peut être relevé. (shrink)

While Aristotle’s and St. Thomas’s teachings about economics are often ridiculed today, this article argues that actually what they had to say about this issue, especially about the nature of sound currency, backed up by force of law, is quite profound. According to both of them, sound money plays an essential role in the preserving commutative justice within States. By so doing, it preserves communication between talented people who make qualitatively unequal contributions to a State’s continued existence and (...) welfare. (shrink)

The theory of justice that Hugo Grotius developed in De Jure Belli ac Pacis (The Law of War and Peace, 1625) set itself against a certain reading of Aristotle, according to which justice is conceived of as a mean between taking too much and taking too little. I argue that we can best understand the implications of Grotius' mature conception by considering the ends to which he had deployed this Aristotelian notion in his earlier work. Grotius came to (...) perceive that his earlier understanding of justice too easily ruled out the sorts of humanitarian concerns that could have a moderating effect. (shrink)

In this article, we will first give a historic overview of the concept of benefit sharing and its appearance in official agreements, particularly with respect to crop genetic resources. It will become clear that, at present, benefit sharing is primarily considered as an instrument of compensation or exchange, and thus refers to commutative justice. However, we believe that such a narrow interpretation of benefit sharing disregards, and even undermines, much of its (historical) content and potency, especially where crop (...) genetic resources are concerned. We argue that benefit sharing should not be based merely on commutative justice but rather on a broader model that is also grounded in the concept of distributive justice. This has repercussions for the application of benefit sharing, which we try to clarify by distinguishing between downstream and upstream benefit sharing. Upstream benefit sharing is not so much inspired by compensation for actions done, or the distribution downstream of benefits developed, but by the idea of shared decision‐making on the research and development of resources fundamental to human welfare. Going upstream in the research process of crop genetic resources, and determining research agendas and improving crops according to the needs of the poor, benefit sharing may well be a tool to contribute to world food security and global justice. We concretize our ideas on upstream benefit sharing by introducing a set of criteria that determine the success of consultations on agricultural research agenda setting. (shrink)

For maximin egalitarians, the intergene rational context raises a threefold challenge. First, doesn't intergenerational maximin simply require a prohibition on dissavings, as a commutative conception of justice based on indirect reciprocity does ? Second, shouldn't we take seriously the aggregative worries of utilitarians in order not to remain eternally stuck into misery. Thus, shouldn't we abandon maximin ? Third, don't we find ourselves in a context where standard egalitarianism and maximin egalitarianism would coincide ? The A. provides a (...) negative answer to each of these three questions. He indicates in particular the extent to which maximin egalitarianism does not simply amount to a non-dis-savings rule. He stresses the way in which we should think about intergenerational justice in a properly distributive manner and he examines the way in which we can deal with the « aggregative challenge ». (shrink)

For the last 50 years the idea of consumer rights has formed an essential element in the formulation of policy to guide the workings of the marketplace. The extent and coverage of these rights has evolved and changed over time, yet there has been no comprehensive analysis as to the purpose and scope of consumer rights. In moral and ethical philosophy, rights are integrally linked to the notion of justice. By reassessing consumer rights through a justice-based framework, a (...) number of key issues emerge regarding the way in which markets enable justice for consumers. The consumer rights which underpin the United Nations consumer protection guidelines address all forms of justice to some degree, but the predominant focus is on procedural justice. Our conclusions question whether this is sufficient and also whether there is a case to develop the notion of consumer ‘duties’ that complement the idea of rights. (shrink)

ABSTRACT In this article, we will first give a historic overview of the concept of benefit sharing and its appearance in official agreements, particularly with respect to crop genetic resources. It will become clear that, at present, benefit sharing is primarily considered as an instrument of compensation or exchange, and thus refers to commutative justice. However, we believe that such a narrow interpretation of benefit sharing disregards, and even undermines, much of its (historical) content and potency, especially where (...) crop genetic resources are concerned. We argue that benefit sharing should not be based merely on commutative justice but rather on a broader model that is also grounded in the concept of distributive justice. This has repercussions for the application of benefit sharing, which we try to clarify by distinguishing between downstream and upstream benefit sharing. Upstream benefit sharing is not so much inspired by compensation for actions done, or the distribution downstream of benefits developed, but by the idea of shared decision‐making on the research and development of resources fundamental to human welfare. Going upstream in the research process of crop genetic resources, and determining research agendas and improving crops according to the needs of the poor, benefit sharing may well be a tool to contribute to world food security and global justice. We concretize our ideas on upstream benefit sharing by introducing a set of criteria that determine the success of consultations on agricultural research agenda setting. (shrink)

In spite of the numerous occasions on which Adam Smith expresses his reservations regarding the morality of commercial societies, there seems to be an agreement that he believed such systems to be fundamentally just. To some, this is so because they attribute to Smith a concept of justice which is narrowly confined to the ‘right to have [one's] body free from injury, and [one's] liberty free from infringement’ . In a world where people have an interest in the fortune (...) of others regardless of how selfish their motives for action might be, injuring someone else's body or restricting someone else's liberty is unlikely to be the behavioural norm. To others, natural liberty in the sphere of economic activity is just not only because individuals behind the system naturally comply with justice in its commutative sense, but also because the system itself generates justice in the distributive sense. Such arguments are based on either the working of the invisible hand — which produces the ‘same distribution of the necessities of life, which would have been made, had the earth been divided into equal portions among all its inhabitants …’ — or on the approval of the ‘impartial spectator’ of the distribution which is associated with the natural price. (shrink)

Le silence observé par John Rawls à propos des thèses de Friedrich Hayek sur la question de la justice sociale est à la fois remarquable et irritant. À défaut de pouvoir s’appuyer sur des textes où Rawls se démarquerait explicitement de ces thèses, il est cependant possible de tenter de tracer la ligne de clivage essentielle entre les deux auteurs : Hayek demeure convaincu que la question de la justice ne peut se poser qu’à propos des actions individuelles, (...) c’est-à-dire dans le domaine du droit privé ou de ce que l’on a appelé la justice corrective et sa démonstration s’appuie sur l’impossibilité de définir une répartition quelconque des ressources comme juste. Rawls affirme, en revanche, qu’il est impossible de définir une transaction interpersonnelle comme juste de manière isolée, et qu’il faut au contraire pour cela que cette transaction prenne place dans une structure sociale juste. Mais loin de concevoir cette justice contextuelle en termes d’allocation de ressources – position que Hayek lui attribue à tort –, il la conçoit en termes de règles de coopération sur lesquelles les partenaires pourraient raisonnablement s’accorder. Le silence de Rawls pourrait donc s’expliquer par le fait qu’il concevait comme une impasse évidente toute tentative pour déterminer les éléments d’une justice commutative ou corrective indépendamment d’une théorie de la justice distributive et que, à ses yeux, il est tout simplement absurde de s’interroger sur la justice d’une transaction – d’un contrat, d’un échange, d’une appropriation – indépendamment du contexte structurel dans lequel elle prend place. Mais il pourrait s’expliquer aussi par le fait que Hayek prend à partie une conception de la justice distributive en termes d’allocation de biens et non en termes de règles de coopération que Rawls lui-même n’a jamais songé à soutenir et qu’il rejette explicitement. (shrink)

L’accident nucléaire de Fukushima a engendré une série de problèmes nouveaux. Comme il s’agissait d’une responsabilité stricte, les victimes n’ont pas eu à prouver la négligence mais ils ont entamé une action pour obtenir davantage de dédommagements pour atteinte morale. Ceci conduit à poser la question de la culpabilité pour négligence et stricte responsabilité. Je propose de ne pas entendre culpabilité au sens moral mais d’y voir une déviation par rapport à la norme. Plus grande sera la déviation, plus grande (...) la culpabilité, sans se soucier de ce qui a entraîné la responsabilité. Quant aux dommages, lesquels peuvent être compensés et lesquels ne le peuvent pas, voilà la question. Il était important de trouver des critères pour étayer cette décision et de les justifier. Pour cela, il faut étudier la structure de la responsabilité pour faute (négligence aussi bien que stricte responsabilité) et voir comment les principes fondamentaux de la justice distributive et de la justice commutative s’appliquent à cette structure. (shrink)

This essay seeks to start a dialogue between two traditions that historically have interpreted the economy in opposing ways: the individualism of classic economic liberalism (CEL), represented by Adam Smith and Milton Friedman, and the communitarianism of Catholic social teaching (CST), interpreted primarily through the teachings of popes and secondarily the U.S. Catholic bishops. The present authors, an economist and a moral theologian who identify with one or the other of the two traditions, strive to clarify objectively their similarities and (...) differences with the opposing perspective. Section one focuses on each position''s perspective of love of self and love of others. We find both CEL and CST saying that self-love, rightly understood, constitutes a moral good and that the love of others serves as an important principle in the political economy. We find less agreement in section two regarding justice and rights, but even here, we discover a few surprises. Both traditions uphold justice (giving to each party what is due) as essential to the political economy, and recognize some similarity in that type of justice called commutative. We note, however, substantial differences regarding a second type of justice that we call "public justice." First, they differ over the extent to which government should be involved. Here the meaning of rights, especially that of individual freedom, arises. Secondly, the traditions diverge over whether benevolence as a motivator ought to serve as a partner for public justice. Thirdly, CEL in general opposes CST''s emphasis on social justice that calls upon institutions to be proactive in helping citizens and groups to become active participants in the economy. We conclude our essay by summarizing our discoveries and by suggesting areas for further dialogue. (shrink)

This article reviews the practices and differing sets of attitudes North Americans have taken with respect to fairness in international trade and proposes a set of common considerations for ongoing debates about these matters. After reviewing the asymmetrical relations between Canada, the United States, and Mexico and the impact of multilateral trade agreements on bilateral trade between these countries, the article looks at four typical normative views with respect to trade held by North Americans. These views variously emphasize concerns for (...) protectionism, liberal fair play, distributive justice, and dissent in the name of the environment or the working classes. Acknowledging that the debates over what is fair are not likely to be easily resolved, we call for open political processes that allow these debates to proceed, and we identify five common points of reference that might usefully inform these debates. These comprise (1) respect for flexibility, (2) the importance of institutions, (3) greater attention to the commutative justice principles for fair exchanges and corresponding guarantees so that all countries possess basic power to bargain on their own behalf, (4) the need to find fitting balance between local, national, regional, and international trade, and (5) more concern for the ways false pricing and abusive transfer pricing distort international trading relations. (shrink)

The main thesis of this paper is that justice is not a natural law that (re)establishes equilibrium and order in the universe, but a disposition enforced by a fighting will to render to every man his due in line with a regime of rights, powers, or immunities to use, enjoy and control some external goods. Inasmuch as there is no sense, feeling or instinct of justice, it is reasonable to assert that people regulate their conduct under the authority (...) of a legislative authority according to certain ideas of justice, which they adopt and promote through a steady effort of knowledge and will. Critical analysis of the main types of justice − associative justice, punitive justice, corrective justice, restorative justice, functional justice, normative justice, commutative justice and distributive justice − from a liberal democratic perspective highlights the formal requirements of justice in different social arrangements and in relation to various aspects of personal and social life. Because it lacks a natural foundation of justice and people have strong interests in enforcing a certain idea of justice, public debates about justice entail a clash of militant wills. Debaters engage in a struggle for political hegemony trying to exclude from the public sphere the rival ideas about justice. In other words, all substantive debates about justice are carried out in an agonistic public sphere. The more civilized and reasonable the agonistic debates about justice are, the more likely the idea of justice is to fit the vital interests of individuals and society. (shrink)

The macro-level business ethics in Scholasticism contrasts with modern Anglo-Saxon Capitalism, which is very influential worldwide. Scholasticism, developed between the thirteenth and the mid-seventeenth centuries, deals with key elements of free market morality, including private property, contracts, profits, prices, and free competition. For over 500 years Scholasticism tried to understand economic phenomena and business activities and reflected on them from an ethical perspective. Scholasticism offered the crucial lesson of the centrality of justice and the role of practical wisdom in (...) considering market morality. Justice is seen as both a virtue and a principle, and commutative justice with the common good of society as the reference for the Scholastics, is regarded as being especially important. (shrink)

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations , though ignored and (...) disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars . Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories . In Gordley’s presentation, commutative justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ‘distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations. (shrink)

“Fair and equitable benefit-sharing” is one of the objectives of the UN Convention on Biological Diversity and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture. In essence, benefit-sharing holds that countries, farmers, and indigenous communities that grant access to their plant genetic resources and/or traditional knowledge should share in the benefits that users derive from these resources. But what exactly is understood by “fair” and “equitable” in this context? Neither term is defined in the international treaties. (...) A complicating factor, furthermore, is that different motivations and perspectives exist with respect to the notion of benefit-sharing itself. This paper looks at six different approaches to benefit-sharing that can be extracted from the current debates on “Access and Benefit-Sharing.” These approaches form the basis of a philosophical reflection in which the different connotations of “fair and equitable” are considered, by analyzing the main principles of justice involved. Finally, the various principles are brought together in order to draw some conclusions as to how a fair and equitable benefit-sharing mechanism might best be realized. This results in several recommendations for policymakers. (shrink)

Assorted fruit from forty years' writing, these essays by David Braybrooke discuss (in Part One of the book) a variety of concrete, practical topics that ethical concerns bring into politics: people's interests; their needs as well as their preferences; their work and their commitment to work; their participation in politics and in other group activities. Essays follow on the justice with which theme matters are arranged for and on the common good in which they are consolidated. Justice here (...) inspires a 'departures' approach, which moves from agreement on departures from commutative justice to agreement on measures of distributive justice needed to forestall such departures. Another essay (first published here) radically undermines the odd but entrenched belief that utilitarianism classically licenced, even prescribed, systematically sacrificing the happiness of some people to give others greater pleasure. Part II and Part III of the book concentrate upon the subject of settled social rules, which are devices for securing the objectives treated in Part I. Part II shows that rules are ubiquitous in ethics, since there are no virtues without rules, just as there are no (justified) rules; without virtues. Part Two also shows that rules are as ubiquitous in social phenomena as the causal regularities sought by one school of social science. Part III captures the dialectic of history at least in part by a logical analysis of changes in rules following the onset of quandaries. It then considers how political choices can be both prudent, by keeping within duly considered incremental limits, and yet imaginative enough to escape the recent embarrassments generated by social choice theory. Characteristically versatile in topic and style, Braybrooke offers original light on all theme subjects. One reader has commented, ' His] prose is elegant and always a pleasure to read. Some of the pieces are nothing short of brilliant.' Which did the reader have in mind? Readers may differ (they already have) on just which pieces they would rank highest. (shrink)

This article offers a critical appreciation of a theory of justice puttoward by 0. Höffe. Höffe suggests that commutative justice forms the basis for every understanding of justice, not only in market relationships but also in the legal and social state. Beginning with Räffes' application of his theory to the health system, this article argues that Höffes' theory is not empirically sufficent; nor does it suffice in the discourse of Iegitimation for law and state. Distributive (...) class='Hi'>justice can only be excluded as the fundamental justice for legal and state function at the cost of participation and solidarity. The paradigm change for which Höffe calls cannot, therefore, count upon the support of Christian social ethics. (shrink)

There is a move away from a market economy in health care in the United States and a move towards such a market in Germany.1 This article tries to make explicit what underlies the moral intuition that there is a tension between a market economy and health care. First, health care is analyzed in terms of the economic theory of the market and incompatibilities are described. The moral problem is identified as the danger of liquefying the distinction between persons and (...) things . The basic moral intuition seems to be the classical social contract: as a functioning market is governed by the principle of commutative justice , free riders have to be kept away, which is achieved by coercion that is not provided by the market; coercion can be justified by a social contract. The special moral problems of a social contract for health care are discussed. It is argued that public coercion in order to collect contributions for essential health care is justified. (shrink)

We briefly review the recent literature on globalization, and present empirical evidence showing that economic globalization has been correlated with higher economic growth and lower poverty rates. We then evaluate the consequences of economic globalization in light of standards of commutative justice as Smith articulated, distributive justice as Rawls presented, and practical justice as Kolm explicated. This essay argues that economic globalization fulfills the requirements of all three species of justice.

In order to systematically explore the normative treatment of Black slavery by Second Scholastic thinkers, usually placing the problem within the broad discussion of moral conscience and, more narrowly, the nature and justice of trade and contracts, I propose two stations of research that may be helpful for future studies, especially in what concerns the study of Scholastic ideas in colonial Latin America. Beginning with the analysisof just titles for slavery and slavery trade proposed by Luis de Molina S.J., (...) I show how his accounts were critically reviewed by Diego de Avendaño S.J., revealing basic features of Second Scholastic normative thinking in Europe and the Americas. Normative knowledge provided by these two Scholastic intellectuals wouldbe deeply tested throughout the last decades of the 17th century, especially by authors who sharpened the systemic analysis and a rigorist moral assessment of every title of slavery and slaveholding, as well as the requirements of an ethics of restitution. (shrink)

Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced (...) sale or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently. (shrink)

In order to systematically explore the normative treatment of black slavery by Second Scholastic thinkers, who usually place the problem within the broad discussion of moral conscience and, more narrowly, the nature and justice of trade and contracts, I propose two stations of research that may be helpful for future studies, especially concerning the study of Scholastic ideas in colonial Latin America. Beginning with the analysis of just titles for slavery and slavery trade proposed by Luis de Molina S.J., (...) I show how his accounts were critically reviewed by Diego de Avendaño S.J., revealing basic features of Second Scholasticism’s normative thinking in Europe and the Americas. The normative knowledge provided by these two Scholastic intellectuals would be profoundly tested during the last decades of the 17th century, especially by authors who sharpened the systemic analysis and a rigorist moral assessment of every title of slavery and slaveholding, as well as the requirements of an ethics of restitution. (shrink)

Pope Benedict XVI’s 2009 Encyclical-Letter “ Caritas in Veritate ,” (CV) breaks some new ground in the tradition of Catholic social teaching. I argue that explicitly this document makes a call for a new theory of economic exchange. Whereas, the traditional scholastic theory of the “just price” was focused on “the principle of the equivalence in value of exchanged goods” (CV 35), a new theory of exchange must focus instead on “a metaphysical understanding of the relations between persons” (CV 53). (...) True, Thomas Aquinas pioneered this new approach to the morality of exchange when he argued that the Golden Rule must take precedence over the logic of the just price: the relation between persons must trump the relation between the goods exchanged. Caritas in Veritate argues further for a new theory of exchange that combines elements of mutual gain with elements of gift-giving. Here again we see a revision of traditional scholastic theory in which every transaction was defined exclusively either as a unilateral gift (subject to norms of distributive justice and charity) or as a bilateral exchange (subject to norms of commutative justice). Benedict, by contrast, calls for a vision of economic life in which gift-giving and exchange are mixed, so that bargains are “redolent with the spirit of gift” (CV 37) in a new “economy of gratuitousness” (CV 38). I propose to outline a new theory of exchange in which the elements of mutual gain and gift-giving are combined. To do so, I shall have to revise the traditional scholastic analysis of the just price, which was focused on the equality of the goods exchanged and instead focus on the moral equality of the parties to an exchange. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Terry Comito NOTES ON PANOFSKY, CASSIRER, AND THE "MEDIUM OF THE MOVIES" The modesty of my title is not feigned. Panofsky's essay on "Style and Medium in the Motion Pictures"1 is more often quoted than understood, and much of it proves upon examination to be curiously elusive. The notes and hypotheses offered here are tentative ones, meant only to point us in the direction of answers to two questions. (...) How might Panofsky's well-known formulation ("the medium of the movies is physical reality as such") most usefully be construed?—useful for us as viewers and then perhaps as critics of movies. And what might he plausibly be supposed to have intended? It is to be hoped that these two points are not impossibly remote from one another. In a recent discussion of "Fact and Fiction in Literature," Roger Shattuck takes Panofsky's essay as an extreme instance of a "belief in the basically documentary nature of film." According to Shattuck, Panofsky supposes that a "film grows naturally out of material things," that it is generated spontaneously, without the intervention of authorial consciousness, from the "undifferentiated reality" before which a camera needs only to be set in motion. Now this is a familiar enough parody of "realist" theories of cinema. But it would be a curious position for anyone really to assert, and particularly curious for a writer so committed as Panofsky to idealist aesthetics. There is, to be sure, a puzzle about the way such an aesthetic might take account of an art that is said somehow to "do justice" to a materialistic interpretation of the world (p. 31). (We would presumably want to know if the justice in question is distributive or commutative: rendering unto Caesar or robbing Peter to pay Paul?) But does a disciple of Cassirer really need to be lectured at about the priority of the whole to the parts, or to be informed that what we call "reality" is constituted in the act of perception? There 229 230Philosophy and Literature are confusions enough in Shattuck's essay to suggest that he is not our best guide over an admittedly strenuous terrain. He informs his readers that Panofsky (and apparently Bazin and Kracauer too) "anticipate " the views of "many structuralists and semioticians," as if there were not a fundamental difference between the autonomy of écriture and the "animistic" view of physical reality Shattuck attributes to Panofsky and his followers. He then introduces a distinction between documentary and fiction films that makes Panofsky the prophet of Warhol, Wiseman, and South American snuff-films, when in fact he talks about Disney, the Marx Brothers, and the derivation of movies from comic strips and dime novels. All this is worth bringing up because Shattuck does raise some crucial issues, if only by so noticeably fudging them. Like most of us who have responded to Panofsky's essay, he has chiefly in mind the assertion that "the medium of the movies is physical reality as such" (p. 31). He wants to construe this as saying that movies "document" or certify the world of external objects and thereby encourage certain sorts of naivete: the belief that we are secure in our knowledge of the world "out there," and that the world really is "out there," independent of our hypotheses and untainted by our uncomfortable consciousness. That movies have often fueled some such nostalgia for the world seems undeniable, but the question elided in Shattuck's discussion is the critical one. To what extent and in what ways does a statement about the "medium" of the movies commit us to a position as to their proper content, or to a specific social program, or to a particular metaphysical understanding of the world? Shattuck cuts through these knotty matters rather than unraveling them. He talks as if Panofsky claims that physical reality as such is the subject matter of movies—which is where Warhol and cinéma vérité come in, as the inheritors of the tradition of Balzac. But this is not what Panofsky says, and it does not accurately describe the parameters of his taste. He objects to "artistic prestylization" in the manner of Caligari, and he thinks... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Striving To Do Good:Well-Springs, Realities, and Paradoxes of Medical Humanitarian WorkRenée C. FoxThe voices that speak from the pages of these testimonial narratives are those of physicians who are engaged in medical humanitarian work. The preponderance of them are based in U.S. academic medical centers where they have clinical, teaching, and research responsibilities from which they regularly "commute" to care for patients in what the euphemistic language of "global (...) health" terms "resource-limited," rather than "poor" countries." This "hybrid life," as one of the physicians (Robert Riviello) refers to it, has transported them periodically to numerous African societies (to Algeria, Ethiopia, Gabon, Morocco, Rwanda, Sudan, Tanzania, and Uganda), to Haiti, to India and Nepal, and to Guatemala and Mexico. Three of the "stories" are written by physicians at work in the countries where they were born (Prasanta Tripathy in Eastern India, Sridevi Seetharam and colleagues in Southern India, and Paul Pierre, in Haiti).Only one group of physician-coauthors (Maricruz Merino, Jonathan Iralu, and Sonya Shin) write about their experiences in practicing medicine among poor and socially disadvantaged patients on the American mainland—in the setting of the Navajo Indian reservation in Gallup, New Mexico.All these physicians describe their involvement in humanitarian medicine as emanating from their commitment to "social justice," to "saving lives," and to "caring for the poor"; to their universalistic convictions about "human solidarity," and the non- otherness of others; to their indignation about the inequities and injustices of the world, particularly with regard to access to health care (in the words of Jeffrey Deal, "[They] deserve better. They all do"); and to their "passionate" desire, not just their "sense of duty," to help rectify these wrongs (Richard Keiden). I was struck by the fact that none of them uses the word "suffering" to describe the plight of the persons whom they feel they have been called to medically assist.Three of the physicians express the wellsprings of their motivation in religious terms. Richard Keiden refers to a "guiding principle of Judaism" on which his medical humanitarian work has been founded—"tzedakah"—which "translates as charity but actually means righteousness," is based on a "concept of social justice," and is "an obligation, not a choice." Robert Riveillo says that at the time of his graduation from high school he envisioned his "life's work as a long-term missionary surgeon"; he invokes "loving mercy," as well as justice, "in this work of solidarity" that he has undertaken; and he poignantly admits that "most days I still long to pack my things, my family, and our efforts and move to Africa for a life of direct service." What Jeffrey Deal writes is the most explicitly and ardently religious of all. He identifies his work as a physician in Sudan with Jesus's "desire for us to care [End Page 115] for the poor and downtrodden in His stead." He is haunted by his "failure" to deliver alive a "partially born" baby girl who for him incarnated "the least of the least" of whom Jesus "spoke passionately." And in touching "ever so briefly... [that] one, tiny being [he] encountered... [on ] that hot morning in Sudan," he attests, he "touched Jesus."Jeffrey Deal is not the only one who was so stricken by the death of a baby or a child. For a number of these physicians (Sadath Sayeed, Maneesh Batra, and for Sridevi Seetharam, Lisa Adams and their colleagues), it was a tragedy that they found hard to bear with "detached enlightenment" (Sayeed), or to accept. The most demonstrably heartbroken and morally outraged among them is Sadath Sayeed, who "wept uncontrollably" over the death of a baby boy, born "at home" in Haiti, "probably in one of the hundreds of make-shift tent cities." The baby was not breathing continuously, and was "handed" to him to care for. At the close of the "story " about this experience that he recounts, Sayeed lashes out with fury and angst at those who were likely to ask him, "How was it in Haiti?" Do you want to hear "my real answer?" he replies:... [L]et me summarize my last patient for you: Good luck Dad... (shrink)

In the development of Roman Catholic social thought from the teachings of the scholastics to the modern social encyclicals, changes in normative economics reflect the transformation of an economic terrain from its feudal roots to the modern industrial economy. The preeminence accorded by the modern market to the allocative over the distributive function of price broke the convenient convergence of commutative and distributive justice in scholastic just price theory. Furthermore, the loss of custom, law, and usage in defining (...) the boundaries of economic behavior led to a depersonalization of economic relationships that had previously provided effective informal means of protecting individual well-being. Hence, recent economic ethics has had to look for nonprice, nonmarket mechanisms for distributive justice. This is reflected, for example, in the shift in attitude from the medieval antipathy toward unions to the contemporary defense of organized labor on moral grounds. (shrink)

El problema radica en la imprecisión del tipo de justicia adoptado en las Constituciones Políticas de América del Sur; tal ausencia genera que el sistema de justicia y la igualdad social sean implementados de forma inadecuada. La finalidad es proponer la aplicación de la justicia conmutativa en la administración de justicia y la justicia distributiva en la igualdad. La metodología utilizada es el enfoque cuantitativo, diseño transeccional, descriptivo. Los resultados presentan desacuerdo y desconfianza en el sistema de justicia y que (...) la falta de precisión del tipo de justicia genera incremento de la desigualdad social y crisis económica. (shrink)