Prioritarianism and Humanitarianism
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Transitional Justice As a Path to Distributive Justice: a Jurisprudential and Legal Case for Land Restitution in Kenya
Transitional Justice as a Path to Distributive Justice: A Jurisprudential and Legal Case for Land Restitution in Kenya Claude Kamau* Abstract Rawls’ theory of distributive justice may serve as a useful model in conceptual- izing a model of the ideal political economy – one that seeks to keep inequalities that have come about as a result of natural accident to a minimum. Moreover, his principles of justice can be used correctively, to address institutional inequalities that have the effect of entrenching social dislocation. Kenya has, over the decades up until now, been riven by injustices relating to land. This has led to the develop- ment of a small cluster of landed elites while the majority of citizens are effectively denied land access rights. This is regardless of the fact that most of the land so acquired by the former was acquired irregularly and with disregard of bona fide title of the original occupants. The concept and process of transitional justice may be viewed as the vehicle toward attaining corrective justice and accountability for offences committed in times of national crisis as a restorative measure. I. Introduction Kenya, being a constitutional democracy,1 is necessarily apt for an analysis of its political economy against the minimum standards imposed by the Consti- tution. The letter of the Constitution (and of the laws that have been legislated under it) is clear. The question this contribution addresses itself to is whether its * The author is a student at Strathmore Law School in Nairobi, Kenya. 1 It is noteworthy that Rawls models his theory against the political constitution of a constitutional democracy. -
John Rawls' Theory of Justice As Fairness
ANDREAS FOLLESDAL 20121025 John Rawls' Theory of Justice as Fairness Approximately as appears in Guttorm Floistad, ed. Philosophy of Justice, Contemporary Philosophy, Springer 2014, 311-328 When do citizens have a moral duty to obey the government and support the institutions of society?1 This question is central to political philosophy. One of the 20 century's main response was John Rawls' theory of justice, "Justice as fairness", in the book A Theory of Justice, published 1971. The book Justice as Fairness was an improved and shorter presentation of Rawls' theory, published 2001 with editorial support by Erin Kelly, one of his former students. When asked how rights, duties, benefits and burdens should be distributed, the ideals of freedom and equality often conflict with each other. In domestic politics we often see such conflicts between calls for more individual freedoms and schemes for universal, egalitarian welfare arrangements. It is such conflict between liberty and equality that Rawls attempts to reconcile with his theory of justice. There are three main steps in Rawls' theory of justice. He assumes certain features characteristic of free societies, as well as some specific ideas about how society and people should be understood. Rawls believes that even people with different beliefs can agree with some principles to resolve basic conflicts over the distributional effects of social institutions. Secondly, he draws on the contract theory tradition in political philosophy, arguing that consent in some sense is necessary for the legitimate exercise of state power. Based on the requirement of consent, in a third step Rawls presents certain principles for a just society that citizens should be expected to support. -
Rawlsian Reflective Equilibrium
T.V. Cunningham draft of 02.13.2014 – please do not quote w/o permission Rawslian Reflective Equilibrium Rawlsian Reflective Equilibrium Abstract: This paper proposes a Rawlsian conception of moral justification as a social activity. Through a close reading, Rawls’ view of ethical justification is shown to be significantly more dialogical and deliberative than is commonly appreciated. The result is a view that emphasizes the social nature of ethical justification and identifies information sharing between persons as the crux of justification in metaethics, in contrast to normative ethics. I call it Rawlsian reflective equilibrium to distinguish it from other varieties. Keywords: reflective equilibrium, moral justification, deliberation, Rawls Word Count: 3,327 1. Reflective Equilibrium and its Discontents Reflective equilibrium (RE) is a popular1 procedural account of moral and ethical justification.2 RE requires that an agent (i) begins in a state with certain initial moral judgments; (ii) proceeds to prune these based on her logico-empirical standards, resulting in a set of considered moral judgments; (iii) adduces moral principles that explicate those judgments; (iv) brings the set of judgments and principles into coherence by selecting among the members of the united set, according to the criterion of maximal consistency; and, (v) brings this latter set into maximal coherence with other relevant background theories (following DePaul 1993, 16-23). Despite its popularity, RE has received ample criticism. The general issue lies with the method’s apparent circularity: RE appears to rest entirely upon the judgments and principles adopted by the agent instantiating it, so whatever judgments, principles, or intuitions she begins with biases the composition of the “justified” set at equilibrium (e.g., Haslett 1987, 307). -
Justice As Fairness, Legitimacy, and the Question of Judicial Review: a Comment
Fordham Law Review Volume 72 Issue 5 Article 4 2004 Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment Frank I. Michelman Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Frank I. Michelman, Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment, 72 Fordham L. Rev. 1407 (2004). Available at: https://ir.lawnet.fordham.edu/flr/vol72/iss5/4 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE CONSTITUTIONAL ESSENTIALS OF POLITICAL LIBERALISM JUSTICE AS FAIRNESS, LEGITIMACY, AND THE QUESTION OF JUDICIAL REVIEW: A COMMENT Frank L Michelman* INTRODUCTION My aims in this Comment are modest and primarily exegetical: to assemble what John Rawls says about the question of judicial review, and to resolve two apparent puzzles posed by his remarks bearing on this question. The remarks I have in mind are all found in Rawls's book Political Liberalism,' mainly in Sections 52 and 63 ("The Idea of Constitutional Essentials" and "The Supreme Court as Exemplar of Public Reason") of Lecture VI ("The Idea of Public Reason").4 It is chiefly in these pages that Rawls reflects on whether and how judicial review may comport with a certain political conception of justice,' namely, the one he calls6 "justice as fairness" and commends as morally apt for our society. -
1 DISTRIBUTIVE JUSTICE and the LAW of PEOPLES Samuel
DISTRIBUTIVE JUSTICE AND THE LAW OF PEOPLES Samuel Freeman, University of Pennsylvania Part I: Background A Theory of Justice says that the distribution of income and wealth within a society is just when laws and economic institutions are designed so as to maximally benefit the least advantaged members of that same society. This standard for domestic distributive justice is to apply worldwide, to determine just distributions in every society in the world. In this regard Rawls has an account of global distributive justice. But he does not have, and he does not endorse, a global distribution principle. The difference principle applies globally, within each society, but it is not global in reach. Neither Political Liberalism nor The Law of Peoples retracts or alters this position. The primary focus of political liberalism is not ideal justice, but liberal legitimacy. It implies that laws regulating distributions in a democratic society can be legitimate, hence worthy of respect, even if they are not wholly just.1 Unlike the basic liberties and their priority, the difference principle is not required by liberal legitimacy; for legitimacy it suffices that a liberal society provide an adequate social minimum (adequate to free and equal persons’ realizing the moral powers and effectively exercising the equal basic liberties). The difference principle is one among several standards that pass the legitimacy test, all of which meet the criterion of reciprocity and the requirements of public reason. A society which protects the basic liberties and their priority, and affords equal opportunities and an adequate social minimum is 1 For Rawls’s distinction between the aims of TJ and PL, Cf. -
Future Generations: a Prioritarian View
Future Generations: A Prioritarian View Matthew D. Adler* How should we take account of the interests of future genera- tions? This question has great practical relevance. For example, it is front and center in arguments about global warming policy. Unfortu- nately, the question is doubly difficult—doubly, because it not merely implicates generic disputes about the structure of moral obligations (disputes between consequentialists and nonconsequentialists, welfa- rists and nonwelfarists, and so forth), but because the appropriate treatment of future generations implicates distinct problems that are not resolved merely by adopting one or another generic framework. This Article addresses the appropriate treatment of future gen- erations within the framework of prioritarianism. In prior articles and a forthcoming book, I argue that the “social welfare function” (“SWF”) approach to policy choice provides a systematic, imple- mentable, and theoretically well-grounded method for rendering pol- icy sensitive not only to efficiency, but also to equity—to the fair dis- tribution of well-being.1 In particular, I defend a “prioritarian” SWF. N A prioritarian SWF ranks outcomes using the formula — g(())uxi i1 where x is an outcome; ui(x) an individual utility number representing the well-being of individual i in outcome x; and g(.) a strictly increas- ing and strictly concave function.2 Because g(.) is strictly increasing and strictly concave, changes to the well-being of worse-off individu- als have greater social weight than changes to the well-being of bet- ter-off individuals. The prioritarian SWF is therefore sensitive to eq- * Leon Meltzer Professor, University of Pennsylvania Law School. -
Ex-Ante Prioritarianism Violates Sequential Ex-Ante Pareto*
Ex-Ante Prioritarianism Violates Sequential Ex-Ante Pareto* Johan E. Gustafsson† abstract. Prioritarianism is a variant of utilitarianism. It differs from utilitarianism in that benefiting individuals matters more the worse off these individuals are. On this view, there are two standard ways of han- dling risky prospects: Ex-Post Prioritarianism adjusts for prioritizing the worse off in final outcomes and then values prospects by the expectation of the sum total of those adjusted values, whereas Ex-Ante Prioritarian- ism adjusts for prioritizing the worse off on each individual’s expectation and then values prospects by the sum total of those adjusted expectations. A standard objection to Ex-Post Prioritarianism is that it violates Ex-Ante Pareto, that is, it prescribes choices that worsen the expectations for every- one. In this paper, I argue that Ex-Ante Prioritarianism suffers from much the same problem: It violates a sequential version of Ex-Ante Pareto, that is, it prescribes sequences of choices that worsen the expectations for ev- eryone. According to the Priority View, benefiting individuals matters more the worse off these individuals are.1 The most influential version of the view is known as Prioritarianism. It is probably best understood as a variation of utilitarianism, because (except for giving priority to the worse off) Priori- tarianism has the same aggregative structure as utilitarianism. According to utilitarianism, the value of a final outcome (an outcome without any risk or uncertainty) is the sum total of well-being in that outcome. Let 퐼(푥) be the set of individuals in outcome 푥, and let 푣푖(푥) be the well-being of individual 푖 in outcome 푥. -
Contractarian Perspectives of International Society: an Analysis of John Rawls' Theory of Justice As Fairness
Contractarian Perspectives of International Society: An Analysis of John Rawls' Theory of Justice as Fairness Patricia Di Brigida Contractarianism developed in the seventeenth and eighteenth centuries during the Enlightenment. It was developed as a political theory to analyze the legitimacy of a government and the basis for political obligation of common people to such a government. In a climate where traditional beliefs were being questioned, credence in the divine right of kings was fading and political authority was beginning to be seen as analogous to human practices. Consequently, political legitimacy and obligation were to be dictated by the wills of the people, and not by God or by nature. Social contract theorists wanted an explanation for the existence of the state an~ the duty that people had afforded it. The contract would come to serve three purposes. It would explain the emergence of government, the people's obligation to it, and the limitations of such a government's power.l The author Will Kymlicka states "people would therefore agree to institute government, and cede certain powers to it, if governors agreed to use these powers to ensure security.,,2 Ina state of nature, all people are free and equal with no one person or entity holding any authority over others. In such a situation there is neither allegiance nor responsibility to others, resulting in a feeling of insecurity. Without government there is no control over people's actions and thus, no guarantee of personal safety. It is for this reason that people consented to government, and were then obligated to obey the laws that it had created.3 It is this idea of consent that was seen as a flaw in the theory because consent was never given by way of any real contract, therefore there were no commitments binding governments or citizens.~ Theorists then began looking for hypothetical consent. -
The Theory of Justice As Fairness from Rawls to Sen
philosophies Article Toward a Human-Centered Economy and Politics: The Theory of Justice as Fairness from Rawls to Sen Alfonso D’Amodio The International Research Area on Foundations of the Sciences (IRAFS), Pontifical Lateran University, 00184 Rome, Italy; [email protected]; Tel.: +39-329-439-7126 Received: 11 September 2020; Accepted: 2 December 2020; Published: 8 December 2020 Abstract: In this paper, I present the suggestion that a suitable theory of “justice as fairness” could offer a consistent path for solving many issues related to the actual crisis of the classical liberal model of economy and democracy, by substituting the abstract “equality” principle, with the concrete “equity” one in the notion of justice. After a short discussion of some main characters of the present worldwide crisis of the classical liberal model, I present two main theories of justice as fairness. John Rawls’ theory in political philosophy that emphasizes how really equitable judgements must overcome the equalitarianism of the Classical Liberalism, by considering the real possibilities of individuals and groups of accessing and enjoying commodities and utilities, as well as, the “basic liberties” defining the citizen equal dignity in the Modern State. Rawls propose, therefore, a notion of fairness compliant with the Kantian normativism, and a notion of fair distributive justice based on the ethical principle of the maximin, as a criterion for judging the righteousness of the State Institutions. The other theory of justice as fairness I discuss in this paper is an evolution of Rawls’ in the direction of the development of a “comparative distributive justice”, without any normativism. -
Prioritarianism and Climate Change
Prioritarianism and Climate Change Maddalena Ferranna and Marc Fleurbaey1 December 2020 Abstract The paper compares utilitarianism and prioritarianism as alternative social welfare frameworks for evaluating climate policies. We review the main debates in the climate policy literature concerning the parameters of the utilitarian social welfare function, and discuss the analytical requirements and climate policy implications of prioritarianism both in deterministic and stochastic settings. We show that, given the specific characteristics of the climate issue and the assumptions routinely made in the climate literature, prioritarianism tends to support more lenient climate policies than undiscounted utilitarianism. This is based on the assumption of economic and social progress that makes the current generation worse-off than future generations. The presence of catastrophic climate outcomes that endanger the living conditions of future generations (or of the poorest individuals living in the future) relaxes this result. Keywords: climate change, prioritiarianism, social cost of carbon, utilitarianism, inequality, climate policy, damage risk JEL Classification numbers: D63, D81, Q54 1 The paper was prepared for inclusion as a chapter in a forthcoming Cambridge University Press volume entitled “Prioritarianism in Practice” edited by Matthew Adler and Ole Norheim. We thank the editors and participants at the Prioritarianism in Practice meetings on May 3-4, 2019 and May 21–22, 2020 for useful comments. Maddalena Ferranna ([email protected]) is affiliated with the Harvard T.H. Chan School of Public Health and Marc Fleurbaey ([email protected]) is affiliated with the Paris School of Economics. 1 1. Introduction Judgements about what is fair and morally defensible play a central role in designing climate policies. -
Justice As Fairness: a Commentary on Rawls's New Theory of Justice
Vanderbilt Law Review Volume 26 Issue 3 Issue 3 - Symposium on Race Relations Article 13 4-1973 Justice as Fairness: A Commentary on Rawls's New Theory of Justice Gilbert Merritt Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Law and Politics Commons, and the Law and Society Commons Recommended Citation Gilbert Merritt, Justice as Fairness: A Commentary on Rawls's New Theory of Justice, 26 Vanderbilt Law Review 665 (1973) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol26/iss3/13 This Book Review is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Justice as Fairness: A Commentary on Rawls's New Theory of Justice Gilbert Merritt* I. INTRODUCTION A Theory of Justice,' John Rawls's new book on social and legal philosophy, appears likely to become a monument of systematic thought comparable to Locke's Second Treatise of Government and Mill's Utilitarianism. It provides answers systematically to the most difficult questions of our time and promises to shape the thought and action of men for many years. Daniel Bell, a noted social scientist, has said that in Rawls "we can observe the development of a political philosophy which will go far to shape the last part of the 20th Century, as the doctrines of Locke and Smith molded the 19th."' 2 Charles Fried, the noted legal philosopher, recently wrote: This book in my view is the most important work in moral and social philoso- phy published since World War II. -
Justice As Fairness, Utilitarianism, and Mixed Conceptions
1 Justice as fairness, utilitarianism, and mixed conceptions David O. Brink It would be hard to overstate the philosophical significance of John Rawls’s TJ.1 It articulates and defends an egalitarian conception of liberalism and distributive justice that consists of two principles of justice: a principle of equal basic liberties and a principle that distributes social and economic goods and opportunities so as to be to the greatest benefit of the least advantaged. Rawls defends this liberal egalitarian conception of justice primarily as an alternative to utilitarianism.2 He situates his defense of this liberal egalitarian conception of justice within the social contract tradition by arguing that his principles of distributive justice would be preferred to utilitarianism and other Thanks to David Estlund, Tim Hinton, Theron Pummer, and Paul Weithman for comments on an earlier draft. I learned much of what I know about the appeal and resources of justice as fairness while I was at MIT in the late 1980s and early 1990s, especially from interactions with John Rawls, Tim Scanlon, Derek Parfit, and my (then) colleague Joshua Cohen. This essay develops ideas in lectures that I gave on justice as fairness during that period, which Tim Hinton attended and discussed with me. 1 Unless otherwise noted, all references to Rawls will be to TJ. The second edition (TJR) was published in 1999. Because the section numbering is the same in the two editions, I will refer to TJ using section numbers as much as possible. Rawls offers a restatement and reinterpret- ation of justice as fairness in JFR.