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Procedure and Substance in Accounts of Justice

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Procedure and Substance in Accounts of Justice PROCEDURE AND SUBSTANCE IN ACCOUNTS OF JUSTICE Shane O'Neill Ph.D. Thesis submitted to the University of Glasgow, Faculty of Social Sciences, May 1994. (C), Shane O'Neill, 1994 ProQuest Number: 13818879 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 13818879 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 GLASGOW I UNIVERSITY I LIBRARY I /fhjtf 9^ Go 0n * In this thesis I present a philosophical argument that defends a particular approach to the legitimation of substantive principles of justice in the context of a modem society. Philosophy must seek to justify a procedure of legitimation that gives us a conception of an impartial point of view. This procedure could then act as a critical test of substantive claims about justice. However philosophy must not actually carry this legitimacy test out itself. This task must be left to all those who are to be affected by the principles in question. The first of three chapters is a critical analysis of the procedure of impartiality that is outlined by John Rawls. I will argue that a consideration of the views of Rawls's communitarian, post-structuralist and feminist critics reveals that his procedure is flawed in a number of important respects. The most important flaw is the fact that Rawls's procedure represents a monological point of view where all differences between represented parties are eliminated prior to a consideration of substantive principles of justice. In the second chapter, Michael Walzer's attempt to theorise justice without recourse to a philosophical conception of an impartial procedure will be examined. While Walzer's approach has certain advantages over Rawls's, his failure to justify an impartial point of view means that his interpretive account of justice is dangerously partial. In the third chapter I will present a theory of justice that overcomes the weaknesses of both Rawls's monological proceduralism and Walzer's contextualist anti-proceduralism. Jurgen Habermas presents us with a dialogical conception of impartiality that can retain Walzer's context sensitivity without losing the critical edge that a philosophical conception of an impartial point of view brings to a legitimacy test for substantive principles of justice. Furthermore, Habermas clearly separates the philosophical task of clarifying an impartial point of view from the democratic task of legitimating principles of justice. I will focus my attention on the dialogical conception of impartiality that is at the core of Habermas's discourse ethics so as to show that his work is the best available theoretical guide for the necessarily procedural task we face, that of legitimating substantive principles of justice in a modem context. Table of Contents Acknowledgements v INTRODUCTION 1 1 JUSTICE AS FAIRNESS AND THE ISOLATION OF THE POLITICAL 11 1.1 Rawls, the Social Contract and the Challenge of Marxism 14 Liberalism and Contract Theory 14 Rawls's Liberalism as Ideology 21 1.2 The Priority of Right and Communitarian Objections 27 Kantian Constructivism and the Charge of Individualistic Bias 29 Justice as Political and the Charge of Atomism 34 Some Implications of Liberal Holism 41 1.3 The Original Position and Post-structuralist Objections 53 The Veil of Ignorance and Social Unity 54 Foucault on Power and Resistance 60 An Excluded Other? 66 Reason, Power and the Moral Point of View 72 1.4 Justice in the Family and Feminist Objections 77 Feminism and the Internal Justice of the Family 79 Gender Blindness in Rawls's Theory 84 Justice, Care and Solidarity 9 1 Rawls as Feminist? 97 1.5 Conclusion 107 2 SPHERES OF JUSTICE AND INTERPRETIVE SOCIAL CRITICISM 112 2.1 Substantive Principles and Complex Equality 117 Rawls's Principles and the Priority of Liberty 118 Justice and the Equal Rights of Citizenship 124 From Simple to Complex Equality 131 2.2 Hermeneutics and Justice 141 Justice without Procedures 143 Interpretation and Connected Criticism 151 Rival Interpretations 154 A Dialogical Understanding of Substantive Justice 161 iv 2.3 The Limits of Walzer’s Immanent Critique 171 Immanent Critique and Ideology 174 Hermeneutics and Critical Theory 182 Extending the Universalist Moral Code 193 2.4 Conclusion 205 3 DISCOURSE ETHICS AS DIALOGICAL IMPARTIALITY 208 3.1 The Priority of Communicative Action 213 Philosophy and Rational Reconstruction 214 Communicative and Strategic Action 222 Illocutions, Perlocutions and Communicative Action’s Priority 228 The Reproduction of the Lifeworld and Critical Social Theory 234 3.2 Discourse and Impartiality 242 Discourse as Reflective Communicative Action 244 Justification of a Cognitivist Ethic 251 Justice and the Advantages of Dialogical Impartiality 264 3.3 Morality and Ethical Life 272 The Scope o f the M oral Domain 276 Hermeneutics and Discourse 283 Recognition and Ethical Patterning 292 3.4 The Case of Northern Ireland 303 Justice and Pluralism in Northern Ireland 3 04 From Communitarianism to Constitutional Patriotism 313 Discursive Legitimation and Northern Ireland’s Constitutional Status 322 3.5 Conclusion 330 CONCLUSION 334 Bibliography 339 Acknowledgements In writing this thesis I was fortunate enough to enjoy the excellent supervision of Michael LessnofF. The arguments presented have undoubtedly benefited greatly from being subjected to the penetrating criticism that he was always ready and willing to offer. I also owe a great debt in this respect to Nick Smith who read and commented on most of the contents. Neither Michael nor Nick are in any way responsible for the flaws that remain. I received practical assistance from many other people at various stages of the production process but the contributions of Ciaran Cronin and Ricardo Blaug were most particularly appreciated. Needless to say, without the personal support of friends, family and especially Grace, these acknowledgements would never have been written. Finally, the work is dedicated to the memory of my father. 1 INTRODUCTION To demand justice or to claim that an injustice has been suffered is to engage in the practice of social criticism. In this thesis I wish to explore one aspect of justice as a tool of social criticism in the context of a modem society. Social criticism in any society depends on a descriptive understanding of how the institutions and practices of that society came to be as they are. This involves an analysis of the struggles of the society’s history, its achievements and its failures. It is to the work of historians, social scientists and legal scholars that we should look for the resources necessary to inform this descriptive understanding. But criticism also depends on a normative understanding of the society. This normative understanding can be thought of as a substantive account of justice. Such an account provides a test for historical achievements. It articulates the standards or principles by which the institutions and practices of that society are called to account. A social critic will argue that some aspect of society fails this test of justice. The critic is expressing a tension between the descriptive and the normative understandings of the people to whom the criticism is addressed. This tension should be a matter of public concern, the subject of an informed and inclusive discussion. My chief concern is to inquire as to how a substantive account of justice is to be grounded and justified. One of the most significant characteristics of a modem society is that people do not share one comprehensive conception of what constitutes a good life for human beings. In a modem society there is not one religious or general philosophical worldview that is shared universally but rather there is a wide ranging plurality of worldviews. Furthermore, people can have very 2 good reasons for not coming to an agreement about certain comprehensive questions as to what constitutes a good human life. It would appear therefore that no one worldview can ground, by itself, an account of justice which all people in a modem society would have good reason to affirm. Given the many divergent beliefs about how a human life should be led, and the corresponding variety of lifestyles that are represented in modem societies, it is no easy task to say what it is to give an account of justice. It does seem to be the case however that the notion of impartiality, the idea that no one person or group is arbitrarily favoured by any account of justice that could claim to be legitimate, must be central to our concerns here. Under modem conditions justice must be grounded, not in one comprehensive worldview, but within some framework that treats people who do not share worldviews in an impartial manner. The justification of some such framework has been one of the great questions with which political philosophy, since the Reformation at least, has had to grapple. I will address myself to two questions that are related to this problem. First, who is qualified to give an account of justice? I will argue that no one philosopher, political theorist or indeed anybody else, is qualified to provide an account of the substance of justice in a modem society. To claim to do so is to overestimate the extent to which any one citizen could adopt an objective and impartial standpoint where the various perspectives of all citizens are equally represented.
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