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This chapter discusses the remaining three conceptions of the political philosopher, and adopts a version of the Rawlsian view organized around a notion of public reason. Political philosophy has four distinct tasks. The first is to help create societies that decide about constitutional essentials and justice from a standpoint of public reason. The second task involves making substantive proposals. This might involve anything from proposing principles of justice to commenting on policy. Most philosophical writing aimed at the public is part of this task. The third task is to ponder concepts such as common good, rights, and justice. This task involves philosophical background work concerning the merits of different conceptions of justice. The fourth task occurs within comprehensive doctrines. Full justification requires integration of a conception of justice within a doctrine. How, and whether, this is possible requires philosophical debate. Combining the first three roles, philosophers emerge as theory-providing citizen-discussants.
Especially after World War II, the British visibly improved, in Hong Kong, on what was already a successful authoritarian–legality-based governance structure dating back to 1842. As one looks more closely at this extended, political–legal experience, it becomes clear these prominent governance achievements were built on particular British constitutional foundations forged over many centuries. Due to the largely unwritten nature of the British Constitution, the way was left open for a scholar possessed of remarkable understanding to analyze and describe – indeed, reveal – the essence of this historically tempered set of resilient governance principles. That scholar was Professor A. V. Dicey. Our analysis draws pointedly on the work of John Rawls as we analyze how “Diceyan constitutionalism” fundamentally shaped the development of governance institutions within the new British colony – working in conjunction with what has come to be known as “Chinese familialism.” Our aim in this chapter is to examine: how Hong Kong’s authoritarian–legality governance system has come to pass; the essence of that system; how thoroughly it has been stress-tested; and how well it may be placed to cope with tests yet to come.
In this article, I aim to clarify some key issues in the ongoing debate about the relationship between Rawlsian political philosophy and business ethics. First, I discuss precisely what we ought to be asking when we consider whether corporations are part of the “basic structure of society.” I suggest that the relevant questions have been mischaracterized in much of the existing debate, and that some key distinctions have been overlooked. I then argue that although Rawlsian theory’s potential implications for business ethics are more extensive than some have suggested, the nature of the concern that we ought to have about the effects of corporate behavior on individuals’ economic and social conditions should lead us to reject the view that corporations are bound by principles of justice only if, and insofar as, they are part of the basic structure.
When courts exercise judicial review, should they invalidate laws that are not motivated by public reason? For proponents of public reason, a standard response might be that laws not motivated by public reason are impermissible under the liberal principle of legitimacy. But this response must confront the permissibility objection, which holds that a law’s motivation is irrelevant to its moral permissibility. Against this objection, this chapter defends a motivational requirement for purposes of judicial review. In some cases, an agent’s motivation can be relevant to the permissibility of the agent’s actions. This chapter also argues that laws with mixed motives, both nonpublic and public, may be permissible, but courts have reason to give such laws careful scrutiny in determining whether they are publicly justified.
This chapter raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the US Supreme Court, the chapter argues that while it does engage in reason-giving to support its decisions, those reasons are (largely) legalistic and specifically juristic reasons – not the theorists’ idealized moral-political reasons on matters of fundamental principle. If constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: Prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The chapter extends beyond the US case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts.
Most American legal scholars have been slow to recognize the significance of John Rawls’s idea of public reason for law. This failure on their part is surprising, given the applicability of public reason to American constitutional theory, doctrine, and practice; it is also unfortunate constitutional theorists are not availing themselves of one of the most interesting ideas found in contemporary political philosophy literature. The main purpose of this contribution is to explain why American legal scholars must develop a conception of constitutional public reason (CPR) that suits the particulars of the American legal system. The other purpose is to address an objection to CPR, namely that it would be too shallow to provide sufficient normative orientation when judges must answer the most challenging constitutional questions. The objector alleges that even if judges were to endorse the same conception of CPR, it still might be indeterminate. As it turns out, CPR probably is no more prone to indeterminacy than any other theory of constitutional adjudication. Indeed, such reason may generate more determinacy when the pool of reasons that judges may draw from is considerably smaller.
John Rawls’s conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, which seems to exclude adoption of Islamic legal doctrines as legitimate rules of decision. While that is true as a matter of ideal theory, the relationship of public reason to Islamic law in nonideal theory is more complex. Islamic law is directly incorporated in the legal systems of numerous Muslim and non-Muslim jurisdictions throughout the world, or its rules arise incidentally in various cases where Islamic law is not formally part of the legal order. This chapter argues that the idea of public reason can meaningfully guide public reason–minded judges when they are tasked with applying Islamic law in a fashion that vindicates the ideals of public reason. Public reason requires judges to steer a middle course among possible extremes when an issue of Islamic law arises: theological reasoning, extreme deference to historical norms, or principled abstention. Moreover, by adhering to the idea of public reason in these cases, judges can play in important role in strengthening, or bringing about, an overlapping consensus in their respective societies.
While unionization is usually evaluated as an aspect of freedom of association—the idea being that workers have the right to associate and form unions if they want and have an equal right not to do so if they don’t, I argue that this is a mistake. Instead of merely allowing unions to form or not depending on the preferences of workers, I argue that unions are a basic and therefore necessary institution of a just society. After analyzing and criticizing the schema developed by John Rawls for evaluating what constitutes a basic institution, I introduce a new principle that allows us to determine what should be considered a basic institution in the context of our existing social institutions and practices. I then apply this principle to unionization, and argue that while unions are subject to post-institutional regulation, just like firms are, their existence is demanded by pre-institutional principles of equality and liberty and therefore not optional. Not only are union shops consistent with our deepest moral principles, including our commitment to liberty, that commitment, when properly understood, actually requires that unionization be universal.
This chapter reviews the material presented in this book, including the history of novel legal doctrines; the use of libel law for political purposes; the interrelationship between politicians, media, and political followers; and the recurring debates over the ethics of comment from a distance. Goldwater was so far ahead of his time in understanding the political value of lawsuits that he anticipated the conservative legal movement of the 1980s. I then propose an alternative approach to the Goldwater Rule, drawing on the work of philosophers James Madison, John Rawls, Jacques Mauritain, and Martha Nussbaum to argue for a more liberal and tolerant guideline for psychiatric comment on public figures. The APsaA, in response to the Fact episode of 1964, adopted such a guideline under President Heinz Kohut. The result was a respectful and ethically coherent stance that has stood the test of time. Instead of banning comment outright as the APA’s Goldwater Rule does – a form of coercive paternalism in the sense described by philosopher Sarah Conley and others – I argue that the psychiatric community should respect the conscience of the individual psychiatrist acting in good faith.
Chapter 6 examines the particular question of John Locke’s position on the toleration of Catholics. This, the chapter argues, was the major area in which his views did not significantly evolve. Recent scholars have tried to establish that Locke softened his position on the intolerability of Catholics by appealing to a ‘loyalist’, oath-taking minority tradition within the Catholic chapter. This chapter refutes this claim and demonstrates Locke’s lifelong refusal to countenance such Gallican (or, in the English context, ‘Blackloist’) solutions to the Catholic question. When these views of Locke are set in their full context, they emerge as another variation on his rejection of the ‘Hobbesian politique’. Loyalist Catholics after the civil war were strongly influenced by the sovereignty theory of Hobbes and on that basis appealed for toleration as an act of monarchical prerogative. Locke’s hardening opposition to such forms of indulgence alienated him from such strategies. Catholics, he came to believe, were irretrievably dominated by either the papacy or the state and thus could not appeal for religious freedom as an inalienable right.
Theorists of community cling to one form of civic friendship—associations—as if no society-wide friendship could exist. Small groups may be friendlier, but they fall short of being truly civic when they fail to guarantee individual rights. John Locke’s liberalism is safer because it bases rights on property. Locke’s theory is also descriptively accurate because it still operates today, under cover of newer theories, for example in the beliefs of electoral majorities that earners deserve to keep the fruits of their labor and that “paying one’s own way” is dignified. Yet communitarians are correct that property rights obscure civic friendship. Aristotle’s psychology of commercial exchange builds on Lockean property, showing how money is a marker for honor, the civic analogue of love. Societies in which workers are paid a fair wage are friendly societies; where this does not occur, society is full of malcontents. Workers feel dishonored by low pay. Similarly, societies that honor civic patrons enjoy a concord that is like friendship; where public service is not honored, the wealthy desire revolution, according to Aristotle. Money and honor tie citizens to the larger society.
This chapter argues that it is both impossible and unnecessary to exclude religion from secular politics. Martin Hägglund claims that deconstruction entails a radical atheism, but Derrida suggests that political commitments are formally indistinguishable from religious faith insofar as they are both directed toward the unforeseeable future. Much as Dionysius orients himself toward an unknowable God, Derrida affirms a justice that is radically elusive. Political theorists such as Mark Lilla argue that religion and politics should be strictly separated, but my account of hope indicates that they are inseparable. Where secularism and theocracy both promise an impossible clarity, atheism and Christian thought share an uncertain hope.
In A Conceptual Investigation of Justice, Kyle Johannsen maintains that the strongest version of John Rawls’s theory of justice is one that incorporates the luck egalitarian conception of fairness developed by G.A. Cohen. He also contends that, once the theory is modified in this way, it becomes clear that the original position doesn’t yield principles of justice but rather what Cohen calls ‘rules of regulation.’ I argue that the minimal conception of fairness that Rawls favours is the right one for his purposes, and that bringing in luck egalitarian fairness would render the outcome of the original position indeterminate.
In this paper, I explain the arguments my critics target and I respond to their criticisms. Some of my replies further expand upon the ideas covered in my book—A Conceptual Investigation of Justice—and some cover matters that weren’t discussed there. This paper thus substantially contributes to the arguments made in my book.
Kyle Johannsen’s conceptual investigation of justice urges us to think of justice as a simple value, which is independent of the exigencies of practice. In what follows, I highlight two methodological issues as a way to raise concerns over whether Johannsen is operating with the ‘correct’ understanding of justice, and to persuade Johannsen that complex problems, such as those of social justice require understanding justice as a complex value. So, while contextualists about justice should embrace the distinction between justice and rules of regulation, justice must be more than an input in our deliberation, and instead constitutes an output.
This paper provides a critical rejoinder to some themes in Kyle Johannsen’s A Conceptual Investigation of Justice. The discussion focuses on Johannsen’s analysis of fundamental value pluralism and identifies a number of challenges to the form of value pluralism defended by Johannsen. I suggest that Johannsen’s analysis fails to explain how conflicts between fundamental values can be resolved, and that there is greater harmony between fundamental values than Johannsen recognizes.
In this paper, I introduce the articles contained in this special issue, and I briefly explain some of the main arguments presented in my book A Conceptual Investigation of Justice. A central claim in my book is that a verbal and yet also philosophically substantial disagreement over the word ‘justice’ lies at the heart of a number of issues in contemporary political philosophy. Over the course of introducing my book’s arguments and the commentaries in this issue, I also offer an account of what it means for a dispute to be verbal, but not merely verbal.
Proponents of political liberalism standardly assume that the citizens of an ideal liberal society would be overwhelmingly reasonable. I argue that this assumption violates political liberalism's own constraints of realism—constraints that are necessary to frame the central problem that political liberalism aims to solve, that is, the problem of reasonable pluralism. To be consistent with these constraints, political liberalism must recognize that, as with reasonable pluralism, widespread support for unreasonable moral and political views is an inevitable feature of any liberal society. I call this the fact of unreasonable pluralism. This fact threatens Rawlsian political liberalism's account of stability because an overlapping consensus cannot stably order a society pervaded by unreasonable views. My argument also raises questions about the coherence of Rawls's conception of ideal theory.
This article explores the shift in Rawls’ just savings principle away from an initial iteration that was indifferent to previous generational savings, to one in which past historical savings are the cornerstone of the motivation to save for future generations. Attention is given to the practical application of the revised principle in the field of the environment. The revised principle is argued to be an improvement on the initial one, because previous generations have an existence and identity that is more tangible than yet-to-be future ones.
This paper mounts a partial defense of the basic structure objection to the egalitarian criticism of productive incentives. The defense is based on the claim that some duties of justice are subject to a reciprocity condition. The paper develops this position via an examination of the debate between Andrew Williams and G. A. Cohen on publicity and incentives. Reciprocity is an intrinsic feature of a relational conception of social justice, not simply a requirement of stability. Not all duties are conditional on reciprocity because some duties are owed to third parties, as well as to their primary targets. Some forms of exploitation may be unconditionally wrong, but not the specific kind of exploitation at stake when talented individuals accept market wages.