Sie sind auf Seite 1von 95

D2014 Legal Theory - Hilbay |1

AMARTYA SEN Introduction: An Approach to Justice 1 1Reason and Objectivity 2 2Rawls and Beyond 3 3Institutions and Persons 4Voice and Social Choice 5 5Impartiality and Objectivity 8 6Closed and Open Impartiality 9 7Position, Relevance and Illusion 10 8Rationality and Other People 12 9Plurality of Impartial Reasons 15 10Realizations, Consequence and Agency 17 11Lives, Freedoms and Capabilities 20 12Capabilities and Resources 22 13Happiness, Well-being and Capabilities 25 14Equality and Liberty 27 15Democracy as Public Reason 35

16The Practice of Democracy 37 17Human Rights and Global Imperatives 39 18Justice and the World 41 SAM HARRIS Introduction: The Moral Landscape 43 Moral Truth 47 Good and Evil 48 Belief 51 Religion 53 The Future of Happiness 54 NATURE OF JURISPRUDENCE NATURAL LAW LIBERTARIAN JUSTICE 58 CONTRACTARIAN 68 HARTS POSITIVISM 69 DWORKINS INTERPRETIVISM 71 Liberal welfare societies 73

55

AMARTYA SEN Introduction: An Approach to Justice - KUA


I. What is his main point in this Chapter? Sens main point is that in cases of deciding justice/injustice of a particular matter, there may be many ways in which a thing is just/unjust but it is not necessary to find out which argument is the dominant or most just/unjust. More plainly, he is saying that there are many reasons for an act to be just/unjust but it is not necessary to pinpoint which reason is the most powerful. II. What is his view on theories of justice? Sen argues that theories of justice must be practical and applicable to the real world. He argues that we need an accomplishment based understanding of justice; justice needs to be applicable, to be felt in everyday lives of the people. He argues that transcendental theories, which are theories that attempt to make a perfectly just world are good but highly inapplicable. For Sen, the purpose

of the study of justice is not to create a perfectly just world but to diminish injustice in the real world. (In short, Sen prefers results over rhetoric. He does not believe that creating a theoretical model of a perfectly just world is important.) III. Whats a transcendental theory of justice? Whats Realization Focused Comparison theory of justice? And Where does Sen stand? According to Sen, there are two types of theories of justice, namely 1. Transcendental Institutionalism and; 2. Realization Focused Comparison/Accomplishment based Transcendental Institutionalism Transcendental Institutionalism is the approach that concentrated on identifying just institutional arrangements for society. It believes that institutions are the primary key to creating the perfectly just world. Thus, its aim is to find out the perfect combination of institutions to create a perfectly just world. It is very theoretical and does not

D2014 Legal Theory - Hilbay |2


concern itself with the problem of whether or not such combination are realizable in the real world. It is thus a arrangement-focused approach to justice. Two distinct features of transcendental institutionalism. 1. It concentrates its attention on what it identifies as perfect justice. 2. It concentrates primarily on getting institutions right. Realization Focused Comparison/Accomplishment based Realization Focused Comparison/Accomplishment based theories on the other hand were concerned with social realizations (resulting from actual institutions, actual behavior and other influences). It is concerned more with removing what injustice it can realistically remove given the restriction of real life less than perfect institutions. They tend to compare societies that already existed or could feasibly emerge instead of thinking for the combination of a perfect world. In short, it is concerned with what it can accomplish in the real world. Sen undoubtedly falls under this class of theorists. IV. Sens criticism on transcendentalism Sen has two criticisms on transcendentalism 1. 2. Feasibility and; Redundancy

Feasibility Sen argues that transcendentalism is flawed because there may be no agreement on the nature of the just society among the population. What is just for one may not be just for another. Thus, transcendental theories that rely on a general consensus of what is just will fail. For example, Sen argues that there is no guarantee that people from Rawls original position would come to an agreement on what is just. Some people might think that giving rewards to hard work is just while other think that redistributing wealth to the poor is more just. (please read pp.12-15 Three Children and a flute for better grasp) Redundancy Sen argues that there is no need to know what the best choice of policy is if that policy is not applicable to the real world. He is basically asking: what use is it to know the best set if it is not in the choices? Illustration: A person with a limited budget is buying a car. His budget can only afford the brands Toyota and Honda. If he asks you which car to buy, you cannot answer Mercedes-Benz since it is not within his budget.

1 Reason and Objectivity - CAETE


Sen starts off with analyzing Ludwig Wittgensteins remark of being better and smarter as one and the same.

clearly about our social concerns and responsibilities. There is, however, much evidence from what we know from Wittgensteins conversations that he did think that his intellectual capacity should definitely be used to make the world a better place. CRITIQUE OF THE ENLIGHTENMENT TRADITION

Lack of smartness can certainly be one source of moral failing in good behaviour. Reflecting on what would really be a smart thing to do can sometimes help one act better towards others Being smarter also gives us the ability to think more clearly about our goals, objectives and values. A person may have well-thought-out reasons other than the promotion of personal gain for acting in a socially decent way Being smarter may help the understanding not only of ones selfinterest, but also how the lives of others can be strongly affected by ones own actions o He goes on to criticize the Rational Choice Theory as a remarkably alienating belief

European Enlightenment saw clearheaded reasoning as a major ally in the desire to make societies better. Some argue (among them Jonathan Glover) that the enlightenment oversold the reach of reason and that the overreliance on reason has contributed to the propensity towards atrocities in the postenlightenment world. One of the main points in favour of reason is that it helps us to scrutinize ideology and blind belief. AKBAR AND THE NECESSITY OF REASON Akbar was Mughal emperor in India who engaged in a far-reaching scrutiny of

Perhaps Wittgensteins point was that being smarter helps us to think more

D2014 Legal Theory - Hilbay |3


social and political values and legal and cultural practice. He made pronouncements on religious tolerance in India and laid down the foundations of secularism and religious neutrality of the state. Underlying Akbars general approach to the assessment of social custom and public policy was his overarching thesis that the pursuit of reason is the way to address difficult problems of good behaviour and the challenges of constructing a just society. Akbar took reason to be supreme, since even in disputing reason we would have to give reasons for that disputation. He concluded that the path of reason or the rule of intellect (rahi aql) must be the basic determinant of good and just behaviour as well as of an acceptable framework of legal duties and entitlements. real ethical questions are a species of practical question, and practical questions dont only involve valuings, they involve a complex mixture of philosophical beliefs, religious beliefs, and factual beliefs as well. Sen goes on to contrast Rawls analysis of moral and political objectivity with that of Jurgen Habermas. Some key points: o Habermas focused on a largely procedural route, rather than relying on some procedureindependent identification of what would convince people who are reasonable persons and who would find some political conviction to be reasonable as well. o Rawls analysis seems, in fact, to focus more on the characterization of deliberating human beings rather than on the categorization of some reasonable persons while excluding others. The role of unrestricted public reasoning is quite central to democratic politics in general and to the pursuit of social justice in particular. ADAM SMITH AND THE IMPARTIAL SPECTATOR Public reasoning is clearly an essential feature of objectivity in political and ethical beliefs. Adam Smith was concerned with the need to broaden the discussion to avoid local parochialism of values, which might have the effect of ignoring some pertinent arguments, unfamiliar in a particular culture. There is an essential similarity in Smith, Habermas and Rawls respective approaches to objectivity to the extent that objectivity is linked, directly or indirectly, by each of them to the ability to survive challenges from informed scrutiny coming from diverse quarters. The overarching similarity among these approaches lies in the shared recognition of the need for reasoned encounter on an impartial basis. THE REACH OF REASON

ETHICAL OBJECTIVITY AND REASONED SCRUTINY Even the importance of emotions can be appreciated within the reach of reason. Reason and emotion play complimentary roles in human reflection. A claim that reasoned scrutiny provides some kind of guarantee of reaching the truth would be very hard to maintain, not only because the nature of truth in moral and political beliefs is such a difficult subject, but mainly because the most rigorous searches in ethics, or in any other discipline, could still fail. o The example of stopped watch that is still right twice a day.

The case for reasoned scrutiny lies not in any sure-fire way of getting things exactly right (no such way may exist), but on being as objective as we reasonably can. What lies behind the case for relying on reasoning in making ethical judgements are, I would argue, also the demands of objectivity, and they call for a particular discipline of reasoning. The important role given to reasoning in this work relates to the need for objective reasoning in thinking about issues of justice and injustice. Despite some overlap between description and evaluation, ethics cannot be simply a matter of truthful description of specific objects. Rather, as Putnam argues,

One of the issues to consider is the possibility that the critics of relying on reason are influenced by the fact that some people are easily over-convinced by their own reasoning, and ignore counterarguments and other grounds that may yield the opposite conclusion.

D2014 Legal Theory - Hilbay |4


The difficulty here surely comes from precipitate and badly reasoned certitude the remedy for which lies in better reasoning, and it is indeed the job of reasoned scrutiny to move from the former to the latter. REASON, SENTIMENTS AND THE ENLIGHTENMENT In celebrating reason, there is no particular ground for denying the farreaching role of instinctive psychology and spontaneous responses. They can supplement each other, and in many cases an understanding of the broadening and liberating role of our feelings can constitute good subject matter for reasoning itself. However, the need for reasoned scrutiny of psychological attitudes does not disappear even after the power of emotions is recognized and the positive role of many instinctive reactions is celebrated. o While Smith argued that our first perceptions of right and wrong cannot be the object of reason, but of immediate sense and feeling, he also argued that even these instinctive reactions to particular conduct cannot but rely if only implicitly on our reasoned understanding of causal connections between conduct and consequences in a vast variety of instances. First perceptions may also change in response to critical examination. What Akbar called the path of reason does not exclude taking note of the value of instinctive reactions, nor ignore the informative role that our mental reactions often play.

2 Rawls and Beyond - PEREZ


**basically, Sen is saying that, although he thinks the Rawlsian theory of justice has some serious defects, we still have to recognize that his theory has shaped our understanding of justice. The goal is to benefit from the richness of his ideas (as a whole), and critically scrutinize and modify those defective parts. Justice as Fairness: The Rawlsian Approach Rawls foundational idea: justice has to be seen in terms of the demands of fairness Fairness a demand to avoid bias in or evaluations, taking note of the interests and concerns of others as well, and in particular the need to avoid being influenced by our respective vested interests, or by our personal priorities or eccentricities or prejudices (demand for impartiality) The Original Position an imagined situation of primordial equality, when the parties involved have no knowledge of their personal identities, or their respective vested interests, within the group as a whole The appropriate initial status quo which insures that the fundamental agreements reached in it are fair= Justice as Fairness Parties have to choose under this veil of ignorance (an imagined state of selective ignorance) It is in this state of devised ignorance that the principles of justice are chosen unanimously Principles of justice determine the basic social institutions that should govern the society Justice as fairness a quintessentially political conception of justice Citizens share a reasonable political conception of justice This gives them a basis on which public discussion of fundamental political questions can proceed and be reasonably decided Leads to cooperation among people in a society despite subscribing to deeply opposed though reasonable comprehensive doctrines These people are led to agree on how to take note of those diversities among the members and to arrive at one set of principles of justice fair to the entire group From Fairness to Justice The fairness exercise is aimed at identifying appropriate principles that would determine the choice of just institution needed for the basic structure of a society The Rawlsian Sequence; 1. The choice of basic principles of justice unanimous choice by all in the original position which would constitute the political conception of justice; it is the unique choice of one particular set of principles for just institutions needed for a fully just society 2. Constitutional stage actual institutions are selected in line with the chosen principles of justice 3. Legislative stage where further social decisions are made through appropriate legislation Critique: o there are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice. Plurality of

D2014 Legal Theory - Hilbay |5


unbiased principles can reflect the fact that impartiality can take many different forms and have quite distinct manifestations. If there is no unique emergence of a given set of principles of justice that together identify the institutions needed for the basic structure of the society, then the entire procedure of justice as fairness would be hard to use o Rawls, in his later writings, concede that his ideal theory of justice cannot be fully attained. there need not be anything particularly non-ideal in a theory of justice that makes room for surviving disagreement and dissent on some issues, while focusing on many solid conclusions that would forcefully emerge from reasoned agreement on the demands of justice. If this is true, then Rawls stage-bystage theory of justice as fairness would have to be abandoned. If institutions have to be set up on the basis of a unique set of principles of justice emanating from the exercise of fairness, then the absence of such a unique emergence cannot but hit at the very root of the theory Application of Rawlsian Principles of Justice The following Principles of Justice will emerge from the original position with unanimous agreement: 1. Each person has an equal right to a fully adequate scheme of basic liberties which is compatible with a similar scheme of liberties for all 2. Social and economic inequalities are to satisfy two conditions: a. They must be attached to offices and positions open to all under conditions of fair equality of opportunity b. They must be to the greatest benefit of the least advantaged members of society (the Difference Principle) Priority of liberty giving precedence to maximal liberty for each person subject to similar liberty for all (first principle) Equal personal liberty is given priority over the demands of the second principle which relates to the equality of certain general opportunities and to equity in the distribution of generalpurpose resources Inequalities relating to productivities (i.e. incentives) are allowed (whereas other distributive claims such as entitlements, ownership of property, etc. are excluded) and defended in the Rawlsian distributive theory if those inequalities help the worstoff people to be better off as a result Critique: o If in the original position, inequalities based on the demands of incentives were judged to be wrong and unjust, then should not the principles adopted at the original position eliminate the need for incentives? For is each person will behave in conformity with the conception of justice emanating from the original position, should we not expect spontaneous compliance by everyone with their respective productive duties without any need for incentives? o The idea that people will spontaneously do what they agreed to do in the original position is Rawls own. And yet he seems to go this far, and no further, and it is not absolutely clear that a line can be drawn in a way that incentive-based inequalities are seen as acceptable, while other grounds for inequality are rejected. Some Positive Lessons from the Rawlsian Approach 1. The idea that fairness is central to justice 2. The nature of objectivity in practical reason a conception of objectivity must establish a public framework of thought sufficient for the concept of judgment to apply and for conclusions to be reached on the basis of reasons and evidence after discussion and due reflection 3. The moral powers that people have, related to their capacity for a sense of justice and for a conception of the good far cry from the rational choice theory (human beings only have a sense of self-interest and prudence but evidently not any capacity or inclination to consier ideas of fairness and justice 4. Prioritization of liberty seeing liberty as a separate and overriding concern in the assessment of the justice of social arrangements; importance of liberty as one of the many influences on a persons overall advantage; a basic necessity for the practice of public reasoning; draws attention to distinction between liberty and other helpful facilities 5. Rawls provided a significant enrichment of the literature on inequality in the social sciences 6. The difference principle indicates the importance of equity in social arrangements so that attention is drawn particularly to the predicament of the worst-off people 7. By focusing on primary goods, Rawls gives indirect acknowledgement to the importance of human freedom in giving people real

Principle 2.a. concerned with the institutional requirement of making sure that public opportunities are open to all Principle 2.b. concerned with distributive equity as well was overall efficiency primary goods= general-purpose means to achieve a variety of ends (whatever resources would be generally helpful in getting what people want)

D2014 Legal Theory - Hilbay |6


opportunity to do what they would like to do with their own lives Problems that can be addressed effectively 1. The total priority of liberty is too extreme 2. In the difference principle, Rawls judges the opportunities that peple have through the means they possess, without taking into account the wide variations they have in being able to convert primary goods in to good living The conversion of primary goods in to the capability to do various things that a person may value doing can vary enormously with differing inborn characteristics, as well as disparate acquired features or the divergent effects of varying environmental surroundings Difficulties that need fresh investigation 1. The Inescapable Relevance of Actual Behavior In the Rawlsian system of justice, direct attention is bestowed almost exclusively on just institutions, rather than focusing on just societies that may try to rely on both effective institutions and on actual behavioral features The understanding of justice cannot neglect the actual social realizations that may be expected to emerge from any choice of institutions, given other social features The acceptance (of the principles of justice) may still be a far cry from the actual patterns of behavior that emerge in any actual society with those institutions The pursuit of justice is partly a matter of the gradual formation of behavior patterns; the institutions have to be chosen not only in line with the nature of the society in question, but also codependently on the actual behavior patterns that can be expected even if a political conception of justice is accepted by all 2. Alternatives to the Contractarian Approach Rawls method of investigation invokes contractarian reasoning (social contract) and compares this with the utilitarian tradition This neglects the exploration of other approaches that are neither contractarian nor utilitarian The idea of addressing the issue of fairness through the device of the Smithian impartial spectator allows some possibilities that are not readily available in the contractarian line of reasoning used by Rawls Some possibilities that the social contract approach cannot easily accommodate: o dealing with comparative assessment and not merely identifying a transcendental solution; o taking note of social realizations and not only the demands of institutions and rules; o allowing incompleteness in social assessment, but still providing guidance in important problems of social justice, including the urgency of removing manifest cases of injustice; and o taking note of voices beyond the membership of the contractarian group, either to take note of their interests, or to avoid our being trapped in local parochialism 3. The Relevance of Global Perspectives The use of the social contract in the Rawlsian form inescapably limits the involvement of participants in the pursuit of justice to the members of a given polity, or people The world beyond a countrys borders cannot but come into the assessment of justice in a country for at least two reasons: o What happens in this country, and how institutions operate, cannot but have effects, sometimes huge consequences, on the rest of the world o Each country, or each society, may have parochial beliefs that call for more global examination and scrutiny

3 Institutions and Persons I.

Halos

4 Voice and Social Choice MANAHAN

The importance of dialogue and communication in the theory of justice a. Understanding the demands of justice is no more of a solitarist exercise than any other human discipline. b. The determination of behavior and type of society should be through dialogue, regardless of whether or not it changes our own views and conclusions: When we try to assess how we should behave, and what kind of societies should be understood to be patently unjust, we have reason to listen and pay some attention to the views and suggestions of others, which might or might not lead us to revise some of our own conclusions.

D2014 Legal Theory - Hilbay |7


A theory of justice should not be so specific as to lock us into some mistake or another. It is acceptable to allow incompleteness of judgment and have an absence of once-and-for-finality finality. i. It is particularly important for a theory of practical reason to accommodate a framework for reasoning within the body of a capacious theory. ii. Rawls illustrates this problem. A specialized theory like Rawls leads us to closing our eyes to important considerations and effects like: 1. Ignoring the discipline of answering comparative questions about justice 2. Ignoring the broader perspective of social realizations 3. Ignoring the possibly adverse effects on people beyond the borders of each country 4. Failure to have any systematic procedure for correcting the influence of parochial values 5. Not allowing the possibility that even in the original position different persons continue to take different principles as appropriate for justice (plurality) 6. Giving no room to the possibility that some people may not always behave reasonably (presumes rationality) d. In order to avoid these deficiencies, the identification and pursuit of the demands of justice may have to take a much broader and more contigent form. II. Social Choice Theory as an Approach a. Social Choice Theory An approach to the exploration of the formal procedures of public decisions and their underlying often hidden normative presumptions b. History of Social Choice Theory i. Early Social Theorists avoidance of both arbitrariness and instability in procedures of social choice 1. French mathematicians a. Addressed the problem of arriving at aggregate assessments based on individual priorities in rather mathematical terms. b. Investigated the discipline of agregation over individual judgments of a group of different persons 2. European Enlightenment / French Enlightenment / French Revolution a. Reasoned construction of social order ii. Modern Social Theorists looked into what caused the apparently reasonable requirements of sensitive democratic practice to yield impossibility results; importance of infrmation on interpersonal comparisons of well-being and relative advantages in resolving impossibilities 1. Kenneth Arrow a. Difficulties of group decisions and the inconsistencies to which they may lead b. Demanded that social decisions satisfy certain minimal conditions of reasonableness, from which the appropriate social rankings and choices of social states would emerge. c. Arrows impossibility theorem / General Possibility Theorem Even some very mild conditions of reasonable sensitivity of social decisions to what the members of a society want cannot be simultaneously satisfied by ano social choice procedure that can be described as rational and democratic III. The Reach of Social Choice Theory a. Social Choice Theory as a limited approach: Because of the apparent remoteness of formal social choice theory from matters of immediate interest, many commentators have tended to see its applicablity as being extremely limited. i. Mathematical nature of formal social choice theory ii. Philosophical analysis of social justice has more practical relevance b. SEN i. Social choice theory is deeply concerned with the rational basis of social judgments and public decisions in choosing between social alternatives ii. The outcomes of the social choice procedure take the form of ranking different states of affair from a social point of view, in the light of the assessments of the people involved. 1. Different from philosophical analysis wherein the supreme alternative is sought among all possible alternatives. iii. A transcendental approach cannon, on its own, address questions about advancing justice and compare alternatie proposals for having a more just society, short of the utopian proposal of taking an imagined jump to a perfectly just world. IV. The Distance between the Transcendental and the Comparative a. The formal remoteness of the trancendental approach from functional judgments about justice does not in itself indicate that the transcendental approach cannot be the right approach. b. Some transcendental theorists not only concede that there is a gap in transcendental and comparative approach, but asserts the folly of going into the comparative sidetrack i. Robert Nozick demands that all libertarian rights be fulfilled, but dismisses the isse of tradeoffs between failures in the fulfilment of different types of rights c.

D2014 Legal Theory - Hilbay |8


A transcendental theory need not be what was called, in the Introduction, a conglomerate theory (resolving transcendental and comparative issues simultaneously) d. Questions i. First, could it be the case that transcendental identification of the perfectly just social arrangement will automatically tell us how to rank the other alternatives as well? ii. Second, if there is a query about sufficiency here, there is also one about necessity. Could it be the case that the transcendental question (what is a just society?) has to be answered first, as an essential requirement, for a cogent and well-founded theory of comparative justice, which would otherwise be foundationally disjunctive and frail? Is the transcendental approach, aimed at identifying a perfectly just state, necessary for comparative judgments of justice as well? e. Implicit beliefs in the sufficiency of the necessity (or both) of a transcendental approach for comparative assessment clearly have had a powerful role in the widespread conviction that the transcendental approach is crucial for the entire theory of justice. V. Is the Transcendental Approach Sufficient? a. The distance-comparison approach (the specification of an entirely just society sufficient to give us rankings of departures from justness in terms of comparative distances from perfection), even though it has some apparent plausibility, does not actually work. i. Different features involved in identifying distance ii. Does not yield any means of addressing these problems to arrive at a relational ranking of departures from transcendence b. The absoluteness of the transcendental right against the relativities of the better and the best may or may not have a powerfully reasoned standing of its own. But it does not, of course, help at all and that is the central point here in comparative assessments of justice and therefore in the choice between alternative policies. c. Even if we think of transcendence not in the gradeless terms of right social arrangements, but in the graded terms of the best social arrangements, the indentification of the best does not, in itself, tell us much about the full grading, such as how to compare two non-best alternatives, nor does it specify a unique ranking with respect to which the best stands at the pinnacle; indeed, the same best may go with a great many different rankings at the same pinnacle. VI. Is the Transcendental Approach Necessary? a. In the discipline of comparative judgments in any field, relative assessment of two alternatives tends in general to be a matter between them, without there being the necessity to beseech the help of a third irrelevant alternative. b. The possibility of having an identifiably perfect alternative does not indicate that it is necessary, or indeed useful, to refer to it in judging the relative merits of two other alternatives c. There would be something deeply odd in a general belief that a comparison of any two alternatives cannot be sensibly made without a prior identification of a supreme alternative. VII. Do Comparatives Identify Transcendence? a. A transcendental identification is thus neither necessary nor sufficient for arriving at comparative judgments of justice. b. I Have discussed elsewhere why a systematic and disciplined theory of reasoned evaluation, including assessment of socail justice, need not take a totalist form. Incompleteness may be of the lasting kind for several different reasons, including unbridgeable gaps in information, and judgmental unresolvability involving disparate considerations that cannot be entirely eliminated, even with full information c. Since a theory of justice, in the standard form, invokes agreement between different parties, incompleteness can also arise from the possibility that distinct persons may continue to have some differences in assessments. d. Even when all the parties involved have their own complete orderings of justice that are not congruent, the intersection between the rainkings that is the shared beliefs of the different parties will yield a partial ranking, with different extents of articulation. e. Thus, for reasons both of incomplete individual evaluations and of incomplete congruence between different individuals assessments, persistent incompleteness may be a hardy feature of judgments of social justice. f. Despite its own intellectual interest, the question what is a just society? is not, I have argued, a good starting-point for a useful theory of justice. To that has to be added the further conclusion that it may not be a plausible end-point either. A systematic theory of comparative justice does not need, nor does it necessarily yield, an answert to the question what is a just society? VIII. Social Choice as a Framework for Reasoning What, then, are the points of relevance of social choice theory for the theory of justice? a. Focus on the comparative, not just the transcendental i. Importance of comparative assessments ii. Concentrates on the practical reason behind what is to be chosen and which decisions should be taken, rather than speculating on what a perfectly just society would look like b. Recognition of the inescapable plurality of competing principles c.

D2014 Legal Theory - Hilbay |9


The need to take not of the possibility of durable conflicts of non-eliminable principles can be quite important in the theory of justice. Allowing and facilitating re-examination i. Room for reassessment and further scrutiny ii. Social decisions that initially look plausible could turn out to be quite problematic, since they may I nfact conflict with other general principles. Which also look, at least initially, plausible. Permissibility of partial resolutions i. Allows the possibility that even a compelte theory of justice can yield incomplete rankings of justice ii. The thoery of justice has to make room for both kinds of incompleteness, assertive (x and y cannot be ranked in terms of justice) and tentative (incompleteness accepted while workign towards completion, on the basis of information or examination or with the use of some supplementary criteria Diversity of interpretations and inputs i. In general, social choice theory as a discipline is concerned with arriving at overall judgments for social choice based on a diversity of perspectives and priorities Emphasis on precise articulation and reasoning i. Explicitness of fully stated axioms and carefully established derivations, which make it easier to see what is being assumed and what exactly they entail. Role of public reasoning in social choice i. Close association with the championing of public reason Dependence of Institutional Reform and Behavioural Change There is a two-way relationship between the encouragement given to rethinking behaviour on grounds of social justice nad the institutional need to advance the pursuit of social justice, given the behavioral parameters in a society. i.

c.

d.

e. f. g. IX. Mutual a.

5 Impartiality and Objectivity - CENIDOZA


But first, trivia! In this part alone, Amartya Sen namedrops a grand total of FOURTEEN PEOPLE. (Burke, Wollstonecraft, Kant, Sidgwick, Walsh, Putnam, Gramsci, Wittgenstein, Russell, Sraffa, Mussolini wtf, Rhees, Rawls, Smith) SUMMARY (aka what Amartya Sen said in a million words that I summarized in less than a hundrednot that Im better than him; madaldal lang talaga siya): One cannot interpret another persons decisions regarding disparate (dissimilar, unlike, different, incongruent, unrelated, contrasting, distinct) issues in terms of one classificatory idea. The reach of justice must be universal: what is right for me must be right for all others who are under similar circumstances. The language that we use to express justice and injustice reflects how we understand these two concepts, and how we understand them. There are two issues which involve understanding and communicating justice Comprehension conforming to conformism Objective acceptability The idea of shared understanding which will make way for nonconformist ideas Using conformism (such as language) in order to communicate nonconformist ideas There is a need for objectivity and impartiality when it comes to public reasoning and debates which concern ethical assessments/judgments. (dito na papasok yung two impartiality: open and closed) ~ It is a mistake to try and interpret the different positions that a person takes on a variety of disparate subjects in terms of just one classificatory idea. As an example, Amartya Sen rambles about the story of Edmund Burke. Mr. Burke is a member of the British Parliamentary, a Whig (basically the young ones of the British Parliamentary; Tories were the old-timers) who is a well-known supporter of the American Revolution but a critic of the French Revolution (along with the Declaration of the Rights of Man of the French National Assembly). His opposition to the French Revolution was clearly conservative, which is different from his support of the American War of Independence. (Point: we cannot interpret Edmund Burkes positions on these revolutions based on just one classificatory idea: which is, in this case, conservatism. Hindi dahil conservative siya e yun na lagi ang position niya.) This idea also applies to a cluster of different reasons for justice that bears on any individual event. Mary Wollstonecraft (British radical activist and early FEMINIST thinker) criticized Burkes support of the American Revolution. She criticized him by writing him a long letter, A Vindication of the Rights of Man, in a Letter to the Right Honorable Edmund Burke. She asks, domains of

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 10
on what principle does Mr. Burke defend American Independence? Thing is, Edmund Burke defends the freedom of the American non-slaves (from the British) but he says nothing of the freedom of the American slaves. The point of Ms. Wollstonecraft is: if you wish to defend freedom, defend the freedom of all. One category/group of people cannot have a preferred position over the other categories/groups of people. Justice must be universal; it cannot be possible for justice to be applicable to one set of people but not to others. three things: fact, convention, value. (Called the Triple Entanglement, Vivian Walsh) b) We are all conformists of some form of conformism. In acquiring ones conception of the world, one always belongs to a particular groupingwhich share the same mode of thinking and acting. Antonio Gramsci c) This Gramsci line of thinking (on how man conforms to conformity) greatly influenced Ludwig Wittgenstein to switch from his initial concept that language is isolated from the social circumstances in which it is used to a concept which says that conventions and rules give language a particular meaning. d) Ordinary language is important in modern philosophy. Philosophy is not a strange and difficult thing just because it is the specific intellectual activity of a particular group of specialists. All men are considered philosophers; that is, philosophers of spontaneous philosophy. Under spontaneous philosophy, language is included. Language is the totality of determined notions and concepts, and not just words devoid of content. Public Reasoning and Objectivity B. Objective acceptability - People must be able to engage in public debates about the correctness of the claims made by different persons a) Conformism is necessary in order to understand any issue. But further than understanding an issue, there is also the concept of acceptance or disagreement with the said issue. Gramsci had wanted to change how people think and how people set their priorities BUT such attempt requires people to be able to engage in a shared mode of thinking and acting. b) Language is a form of conformism. However, we use language as the form through which we express nonconformist proposals and ideas. We discuss and formulate new ideas using conformist rules (old rules of expression aka language). The dual task is this: to use language that communicate efficiently through the use of conformist rules while trying to make this language express nonconformist proposals. c) But what is the point of this dual task? The demands of ethical objectivity relate closely to the ability to stand up to open public reasoning, and this has close connections with the impartial nature of the proposed positions and the arguments in their support. So. People propose and pursue theories of justice through public reasoning and debates, right? We examine these proposals. Our examination of these proposals will be based on the REASONING on which the proposal is based and the ACCEPTABILITY of the way it was reasoned.

Impartiality, Understanding, and Objectivity Contemporary moral and political philosophy considers EVERYONE morally and politically relevant. It is possible to concentrate on the freedoms of particular groups of people. However, there must be some kind of pointer that locates such narrow concentration into a broader framework which takes everyone into account. For example, STAND-UP (the red party here in UP; yung mga tibak ahaha) advocates for our right to education as UP students (by asking for greater state subsidy, and all that jazz). This advocacy for education can actually be located to a broader framework which takes everyone into account: that is, our right to education as Filipinos. (Note: sariling example ko to, ayon sa kung paano ko naintindihan yung sinabi ni Ginoong Sen. Use at your own risk ahaha) Henry Sidgwick, utilitarian economist, paraphrasing Immanuel Kant said: That whatever is right for me must be right for all the persons in similar circumstances which was the form in which I accepted the Kantian maxim seemed to me to be certainly fundamental, certainly true, and not without practical importance. ***Remember how Amartya Sen focuses on a realization-focused theory of justice? Such theory of justice focuses on the removal of manifest injustice in the world rather than the realization of a perfectly just world. This idea is related to the next main point of this part of the book. The language of justice and injustice reflects our shared understanding of these two concepts, and our communication of these concepts to others. There are 2 issues of non-subjectivity here: A. Comprehension and communication on an objective basis - Each persons beliefs and utterances must not be categorically confined to a personal subjectivity that others cannot penetrate a) Language reflects our concerns from which we draw our ethical assessments. These ethical assessments are from the entanglement of

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 11
d) Point is, one must be OBJECTIVE in communication and public reasoning but must also be objective and IMPARTIAL in ethical evaluation. 2. Different Domains of Impartiality (to be discussed further in the following part) 1. CLOSED IMPARTIALITY impartial judgments invoke only members of a given society/nation for whom the judgments are being made

OPEN IMPARTIALITY Impartial judgments invoke judgments from outside the focus group in order to avoid parochial bias

6 Closed and Open Impartiality - SANTOS J.


Closed and Open Impartiality o Closed impartiality Found in Rawls (veil of ignorance) The procedure for making impartial judgements invokes only the members of a given society or nation from whom the judgements are being made No outsider is involved in, or a party to, such a contractarian procedure

Open impartiality Found in Adam Smith (impartial spectator) Procedure for making impartial assessments can/must invoke judgements, among others, from outside the focal group to avoid parochial bias In Adam Smiths use of the device of the impartial spectator, the requirement of impartiality requires the invoking of disinterested judgements of any fair and impartial spectator, not necessarily (indeed sometimes ideally not) belonging to the focal group. Smith invoked the device of the impartial spectator to go beyond reasoning that may be constrained by local conventions of thought, and to examine deliberately what the accepted conventions would look like from the perspective of a spectator at a distance.

The Position and Limits of Contractarianism . o The Rawlsian veil of ignorance in the original position is a very effective device for making people see beyond their personal vested interests and goals. And yet it does little to ensure an open scrutiny of local and possibly parochial values. The Smithian procedure includes, as a result, the insistence that the exercise of impartiality must be open (rather than locally closed), since we can do this in no other way than by endeavouring to view them with the eyes of other people, or as other people are likely to view them

Citizens of a State and Others Beyond (I just put Sens summary statement at the end of the subchapter) o assessment of justice demands engagement with the eyes of mankind, first, because we may variously identify with the others elsewhere and not just with our local community; second, because our choices and actions may affect the lives of others far as well as near; third, because what they see from their respective perspectives of history and geography may help us to overcome our own parochialism.

Smith and Rawls (nothing important or new is said here)

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 12
On Rawls Interpretation of Smith o He basically is just saying that Rawls interpretation of Smiths impartial spectator is wrong. No other important points

Limitations of the Original Position

Exclusionary neglect: Closed impartiality can exclude the voice of people who do not belong to the focal group, but whose lives are affected by the decisions of that group.

The world is certainly divisive, but it is diversely divisive, and the partitioning of the global population into distinct nations or peoples is not the only line of division.(we can be divided not only in terms of citizenship but also in terms of class, gender etc.) Women in the US can also be concerned for women in Africa

Inclusionary incoherence: Inconsistencies can potentially arise in the exercise of closing the group when the decisions to be taken by any focal group can influence the size or composition of the group itself. (ang labo ng point na ito but it doesnt seem important anyway.) Procedural parochialism: Closed impartiality is devised to eliminate partiality towards the vested interests or personal objectives of individuals in the focal group, but it is not designed to address the limitations of partiality towards the shared prejudices or biases of the focal group itself.

7 Position, Relevance and Illusion - LORENZO


In epistemology, it is important that you also try to go beyond positional confinement. Positionality of Observation and Knowledge What we see is influenced greatly by where we stand in relation to what we are trying to see. o Not that this is bad. Because positionally-dependent observations, beliefs and choices can be important for the enterprise of knowledge and for practical reasons. Ex. the moon and the sun look similar in size. It is not to say that this is totally non-objective because some other person standing on that particular point may be able to say the same thing. There can, therefore, be positional objectivity.

Positional objectivity requires interpersonal invariance when the observational position is fixed and that requirement is entirely compatible with variations of what is seen from different positions.

Illumination and Illusion of Positionality Positional dependence of observational results can either: o o Illuminate OR Mislead.

Classical conception of objectivity: positional independence Positional observations can mislead if we do not take enough notice of positional variability of observation and try to make appropriate corrections. The search for some king of position-independent understanding of the world is central to the ethical illumination that may be sought in a non-relational approach.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 13
o Example: Mary Wollstonecraft was arguing against Edmund Burke, because he was supporting the American Revolution but was not interested in the status of the slaves, as if the freedom he sought for white Americans need not apply to its black slaves.

Objectivity of Illusions and Positional Objectivity The hold of positional perspectives can have an important role in making it hard for people to transcend their positionally limited visions. o Ex. a society that has long relegated women to a subordinate position. The cultural norm of focusing on some alleged features of womens supposed inferiority may be so strong that it may require considerable independence of mind to interpret those features differently. If in a society, there are few women scientists, it would be hard to get past the observation of women having a lack of success in the field. It would require a lot to get past that thought to the conclusion that maybe women are just as good at science, its just that there is a lack of opportunity and encouragement. We have to open our eyes also to the circumstances prevailing in other societies wherein people are given equal opportunities. Then we see also that women are just as good as men in science. This calls for OPEN IMPARTIALITY, invoking Adam Smiths methodological device of the impartial spectator, looking at perspectives from far as well as near.

objective illusion- used in Marxist philosophy, can be helpfully interpreted in terms of positional objectivity. o An objective illusion is a positionally objective belief that is in fact mistaken in terms of transpositional sctrutiny. This concept invokes the idea of positionally objective belief and the transpositional diagnosis that this belief is actually wrong. Example: the moon and the sun looks similar in size. Its a positionally objective belief. And upon deeper study, it was proved to be a mistake. YET, in some way its normal. If a person claims to perceive a stationary sun and a rotating earth would be suffering from disorder of vision, or motor control. (because its just not something people notice, its something people take for granted because its a generally accepted fact.)

Health, Morbidity and Positional Variance False consciousness o In a place (A) where people are more educated and have a better standard of living, people who were surveyed have a higher self-perceived morbidity rate as opposed to a place (B) where people are less educated and have a lower standard of living. Understand that although this seems erroneous, it is the work of the objective illusion. In A, there is a much higher awareness of risks of illnesses even though there is a greater access also to medical services. In B, people have less discernment of possible illnesses.

Gender Discrimination and Positional Illusions The same principle above hold s true for men and women, for example, in India. o Although women have a lower morbidity rates than men, their self-perceived morbidity rates are usually much higher than those of men. This can be attributed to womens deprivation in education, and also to the social tendencies to see gender disparity as a normal phenomenon.

Positionality and the Theory of Justice While positionality of observation and construction plays an important part in the process of advancing scientific knowledge, it is more significant in belief formation in general- in social comprehension as well as in pursuit of natural sciences.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 14
o The role of positionality may be particularly crucial in interpreting systematic and persistent illusions that can significantly influence- and distort- social understanding and the assessment of public affairs.

Overcoming Positional Limitations In the pursuit of justice, positional illusions can impose serious barriers that have to be overcome through broadening the informational basis of evaluations, which is one of the reasons why Adam Smith demanded that perspectives from elsewhere, including from far away, have to be systematically invoked. o Because it should always be taken in mind that what we perceive are anchored heavily on the perceptions we can have and the thoughts we can generate, given the kind of creatures we are. But this does not mean that we cannot partially or wholly overcome positionality in ways that take us to less confined views.

Idea of Neighbors The concept of duty to neighbors has a huge place in ethical ideas in the world But this idea of neighbor should not be confined to the physical conception of the word. Precisely Jesus point in the story of the Good Samaritan. In todays world, we are increasingly linked not only by our mutual economic, social and political relations, but also by vaguely shared but far-reaching concerns about injustice and inhumanity that challenge our world and the violence and terrorism that threaten it. There are few non-neighbors left in the world today.

Definitions/Notes: Positional objectivity- requires interpersonal invariance when the observational position is fixed and that requirement is entirely compatible with variations of what is seen from different positions. o Stated differenty: If youre positionally objective, 2 people standing on the same point should be able to arrive at the same observation.

What is objectivity (according to Thomas Nagel)- A view or form of thought is more objective than another if it relies less on the specifics of the individuals makeup and position in the world, or on the character of a particular type of creature he is. Open impartiality- using Adam Smiths methodological device of the impartial spectator, looking at perspectives from near and far. An objective illusion is a positionally objective belief that is in fact mistaken in terms of transpositional sctrutiny. Neighbor- not just the physical one but extends to everyone one has dealings with.

8 Rationality and Other People - VALLADA


Maximization mainly invoked in economics and in social sciences as a behavioral characteristic. Maximization in physics vs. maximization in economics: behavior, since no volition is involved in the lights choice of a minimum time path

Physics and natural sciences = there is an absence of a decisional choice; maximization occurs without a deliberate maximizer E.g.: Principle of least time in optics (minimization exercise) was not at all a case of conscious

Economics = maximization is seen as a result of conscious choice. = the exercise of rational choice is typically interpreted as deliberate maximization of what a person has the best reason to promote. Double use of maximizing behavior in economics as:

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 15
- predictive device (trying to guess what is likely to happen) - criterion of rationality (assessing what norms must be followed for choice to be seen as rational) imprudent behavior might sometimes be based on failing to see the underlying reasons behind particular choices even when these reasons exist and are cogent enough ***Important to note that what is important is NOT any presumption that people invariably act in a rational way, but rather the idea that people are not altogether alienated from the demands of rationality. People can respond to reasoning not merely in their day-to-day behaviour, but also in thinking about bigger questions (nature of justice or the characteristics of an acceptable society)

SEN identified two different issues: (1) rational choice (2) actual choice and posed the question: whether rational choice would, in fact, be a good predictor of what is actually chosen?

RATIONAL DECISIONS AND ACTUAL CHOICE Question: Are people invariable, or even typically, guided by reason rather than passion or impulse?

RATIONAL CHOICE VERSUS SO-CALLED RATIONAL CHOICE THEORY Questions: What exactly are the demands of rational choice? Points to remember: Popular answer in economics, politics and law: people choose rationally if and only if they intelligently pursue their self interest, and nothing else. Sen: this is an exceedingly narrow approach /extremely limited understanding to rational choice. Meaning of Rational Choice Theory (RCT) characterizes rationality of choice simply as smart maximization of self-interest. Sens critique of the RCT People would fail to be rational if they did not intelligently pursue only their own self-interest, without taking note of anything else. Human beings can easily have good reason to pay attention to objectives other than the single-minded pursuit of self-interest AND can see arguments in favor of taking cognizance of broader values or of normative rules of decent behavior. Sens proposal: Rationality of choice must be less restrictively and more cogently characterized How? Primarily a matter of basing our choices (explicitly or by implication) on reasoning that we can reflectively sustain if we subject them to critical scrutiny. The essential demands of rational choice relate to subjecting ones choices of actions, objectives, values and priorities to reasoned scrutiny. Basis: the link between what would be rational for us to

What would he actually do? Theories: 1. Herbert Simons bounded rationality there is a possibility that people may not, in all cases, look for fully rational choices because of their inability to be sufficiently focused, or adequately steadfast or alert enough in seeking and using information that would be needed for the complete pursuit of rationality. 2. Kahneman, Slovik & Tversky people may fail to understand adequately the nature of the uncertainty that may be involved in deciding on what to expect in any specific case based on the evidence available. 3. Greek philosophers weakness of will or akrasia one may know fairly well what one should do rationally, and yet fail to act in that way. in economics, this is sometimes called the bounded willpower or insufficient self-command Relationship between rational choice and actual behavior authors are divided in the sense that some tend to think that it is correct to assume that peoples actual behavior would follow the dictates of rationality, while others are skeptical. Critique of the rationality of actual behavior irrational or downright stupid behavior might not actually be so insane

What would be rational for a person to do?

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 16
choose and what we have reason to choose Reason to do something = NOT just a matter of unscrutinized conviction (strong gut feeling or that we have excellent grounds for doing what we choose) BUT it demands that we investigate the reasons underlying the choice and consider whether the alleged reasons survive searching and critical examination, which one can undertake if and when the importance of such selfscrutiny is understood. BUT people doesnt have to undergo the extensive critical scrutiny everytime we choose something when the reasons for a particular choice are established in our minds through experience or habit formation. *Sustainable reasoning can exist without undertaking explicit scrutiny on every occasion. our decisions and actions aside from self-interest, rational choice is now becoming less of a basis to predict actual human choices in the future as it was initially used in economics) actual choice cannot be predicted from the idea of rationality alone

THE NARROWING OF MAINSTREAM ECONOMICS Sen explained views of some famous economists: 1. Francis Edgeworth (19th century economic theorist) Talked about a dichotomy between the (1) assumption of human behavior on which economic analysis was based on and (2) his own belief about the actual nature of individual behaviour. Believed that the contemporary human being is an impure egoist, a mixed utilitarian. 2. Aristotle, Aquinas, Ockham, Maimonides Ethics was used as an important part of understanding human behavior and relations in society.

General approach to rational choice = seeing rational choice as choice based on sustainable reasons. Can be both exacting and permissive Exacting because there is no simple formula automatically taken to be rational without subjecting that formula to a searching scrutiny Permissive because it does not rule out the possibility that more than one particular identification of what can be chosen with reason could survive a persons critical scrutiny Implication of this permissibility it is one thing to accept the need to understand the nature of rational choice because of its own importance and also for its relevance in analyzing actual choice, but it is quite another to expect that an understanding of rationality of choice could be immediately translated into the prediction of actual choice based on the set of choices that all count as rational - Plurality of reasons = important in giving rationality its due and also it distances the idea of rational choice from its putative role as simple predictor of actual choice. (in short, because there may be many reasons that influence

3. William Petty, Gregory King, Francois Quesnay concerned with ethical analysis 4. Adam Smith (father of modern economics) Wrongly thought to be the proponent of the assumption of the exclusive pursuit of self interest in the form of the so-called economic man Self love term used to describe the underlying impulse behind narrowly selfinterested behaviour & according to him, it might be just one of the many motivations that humans have. Other reasons may include sympathy, generosity and public spirit. He discussed extensively the need for non-selfinterested behaviour and went on to argue that while prudence was of all virtues that which is most helpful to the individual, we have to recognize that humanity, justice, generosity and public spirit are the qualities most useful to others. Smith was misunderstood by other economist and thinking that he was the champion of the unique pursuit of self-interest by human beings. o But according to Sen, this misunderstanding was a misreading of Smith because the self-interest idea was only to address the very specific issue of exchange (particularly the motivation underlying exchange)

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 17
o Sen defended Smith by saying that the rest of Smiths writings are extensive discussions of the role of other motivations that influence human action and behaviour. of their own welfare, but it also assumes that they would be violating the demands of rationality if they were to accommodate any goal or any motivation other than the singleminded pursuit of their own welfare, after taking note of whatever external factors influence it. COMMITMENTS AND GOALS Sen rearticulated that there is nothing wrong about pursuing a goal that is not exclusively confined in self-interest. Recognized Adam Smiths idea that we can have different motivations beyond the singleminded pursuit of our own interest However there is this counterargument that says that altruistic agents cannot pursue other peoples goals without making them their own Sen: In denying that rationality demands that you must act single-mindedly according to your own goals, you do not necessarily dedicate yourself to the promotion of the goals of others o Sen appreciates the factor that even though we are not entirely willing to promote the goals of other people, we still have a certain level of respect for decent rules of behaviour / norm of good behaviour.

SELF-INTEREST, SYMPATHY AND COMMITMENT There is a difference between: (1) taking note of how ones own welfare is affected by the circumstances of others and then exclusively pursuing ones own welfare AND (2) departing from the single-minded pursuit of ones own welfare altogether. Sen mentioned his paper, Rational Fools where he explored the distinction between sympathy and commitment as possible foundations of other-regarding behaviour o Sympathy = one persons welfare being affected by the position of others; combinable with self-interest behavior; compatible with Adam Smiths self-love o Commitment = concerned with breaking the tight link between individual welfare and the choice of action Gary Becker (contemporary rational choice theory) o Made systematic room for sympathy for others as part of human sentiment, while sticking to the exclusive pursuit of self-interest. o All human behavior can be viewed as involving participants who (1) maximize their utility (2) form a stable set of preferences and (3) accumulate an optimal amount of information and other inputs in a variety of markets o RCT: The maximand for ones choice of behaviour is nothing than ones own interest or well-being and the central assumption is compatible with recognizing that various influences on ones own interest and well-being may come from the lives and well-being of other people. Sen: the most important issue to clarify is that not only does RCT presume that people do not actually have different goals from the pursuit

FINAL PARAGRAPH WORTH QUOTING We live in a world in which there are a lot of other people and we can give them room for their own way of living even without adopting their way as something that we must see as a good thing to promote. Commitment may take the form not only of wanting to pursue goals that are not entirely parasitic on selfinterest; it can also take the form of following rules of passable, even perhaps generous behaviour, that restrain our inclination to be guided exclusively by the promotion of our own goals, irrespective of its impact on others. Being considerate of the desires and pursuits of others need not be seen as a violation of rationality

9 Plurality of Impartial Reasons - NATIVIDAD


Sen reviewed some of the points from the last chapter (chapter 8): Peoples goals can go well beyond the singleminded promotion of self-interest only, x x x x if moved by some concern for the decency of behaviour, allowing others to pursue their goals as well. Rational choice theory, in trying to define rationality simply as intelligent promotion of -

self-interest, sells human reasoning extremely short. The connection between rationality of choice and the sustainability of the reasons behind choice 1. Rationality is primarily a matter of basing our choices on reasoning that we can reflectively sustain. 2. It demands that our choices, actions, objectives, values, and priorities, can

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 18
survive our own seriously undertaken critical scrutiny However, while rationality of choice can easily allow non-self-interested motivations, rationality does not on its own demand this. Rationality is in fact a rather permissive discipline, which demands the test of reasoning, but allows reasoned self-scrutiny to take quite different forms, without necessarily imposing any great uniformity of criteria. The demands of reasonableness, as characterized by Rawls, tends to be more exacting thatn the requirements of mere rationality The demands of scrutiny would have to be sharpened and tightened when we move from the idea of rationality to that of reasonableness The idea of objectivity in practical reason and behaviour can be systematically linked to demands of impartiality. This means that we can take the relevant standard of objectivity of ethical principles to be linked to their defensibility in an open and free framework of public reasoning. Other peoples perspectives and assessments as well as interests would have a role here in a way that rationality alone need not demand. judgments on the poor do not vary regardless of whether we are rich or poor) But there is no way to guarantee this exacting scrutiny because we are capable of much selfindulgence in our views and opinions of things in which we are directly involved (in other words, biased tayo sa mga involvements natin) In the social context, involving some fairness to other people, there is some necessity to go beyond the requirements of rationality in terms of permissive self-scrutiny, and to consider the demands of reasonable conduct towards others. We have to pay attention to the perspectives and concerns of others because they influence the scrutiny of our decisions and choices Our understanding has to go beyond Adam Smithss concept of self-love

WHAT OTHERS CANNOT REASONABLY REJECT Our positions and predicaments can influence general attitudes and political beliefs about social differences and asymmetries. Exacting scrutiny seeking more consistency in our general evaluative judgments (e.g. our Scanlon CONTRACTUALIST approach because of his idea of a shared willingness to modify our private demands in order to find a basis of justification that others also have reason to accept The arguments come from anyone in the society or elsewhere who can give specific grounds for thinking that the decisions to be made could or could not reasonably be rejected Parties bring in different moral perspectives if they are judged to be reasonable (not limited to the opinions of just those involved) OTHER OPINIONS Inclusional broadening - persons whose interests are affected dont only come from one society or nation or polity People whose interests are seen as relevant. They need not come from a particular state Search is for generic reasons that people in various positions have, hence not only the views of the locals matter Sen says we have a good reason to build on Scanlons formulation than Rawls because there are lesser restrictions. He also says that Scanlons idea does not presuppose a contract, but the idea is seen correctly by Scanlon as a central element in the social contract tradition going back to Rosseau.

Scanlon: thinking about right and wrong is, at the most basic level, thinking about what could be justified to others on grounds that they, if appropriately motivated, could not reasonably reject. Moving from rationality to reasonable behaviour (in relation to other people) means taking serious note of the critical scrutiny from the perspectives of others. There is a strong connection between Scanlons criterion and Rawls fairness through original position (Scanlons analysis of reasoning is a broader one compared to that of Rawls which focuses on mutual benefits through agreement. See table for differences between the two schools of thought Rawls CONTRACTARIAN approach

The interests of the different persons in a particular society all count (in an anonymous way) Representatives do not unleash any specific moral views or cultural values of their own in the deliberations of their original position. Their task is merely to best advance their own interests and the interest that they represent ONLY THOSE INVOLVED Only from one society (as Rawls termed it people by people) Only from a particular state Restrictive in terms of limiting the range of perspectives that are allowed to count in public deliberations

Scanlons idea, according to Sen, is a great deal more general than would appear from his own attempt to incarcerate it strictly within the confines of the social contract tradition

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 19
THE PLURALITY OF NON-REJECTABILITY Scanlons approach does no yield just one unique set of principles, as Rawls (and most other contractarians) does. Rawls approach has to lead to one specific contract, because it is that unique set of demands that determines the basic institutional structure of society There are different types o competing reasons of justice, and it may be impossible to reject them all with the exception of just one set of complimentary principles that cohere nicely and entirely with each other. This is so because we have priorities which vary from person to person, and all competing arguments have some claim to impartial support THE MUTUAL BENEFITS OF COOPERATION Rawls: the idea of cooperation include the idea of each participants rational advantage, or good, and the idea of rational advantage specifies what it is that those engaged in cooperation are seeking to advance from the standpoint of their own good Rawls v self-interested perspective of rational choice theory 1. Rawls: veil of ignorance 2. Both: people recognize that they cannot achieve what they would like without the cooperation of others - Cooperative behaviour is chosen as a group norm for the benefit of all, and it involves the joint choice of terms each participant may reasonably accept, and sometimes should accept, provided that everyone else likewise accepts them (this is called the prudential argument/prudential morality) Sen says there is an advantage-based underpinning to the Rawlsian approach to justice as fairness because: 1. The idea of mutually beneficial cooperation is central to the original position 2. Rawls invoking of the foundational idea of fairness is mainly through the device of the original position This advantage-based perspective is important for social rules and behaviour since there are many situations in which the joint interests of a group are much better served by everyone following rules of behaviour that restrain each person from trying to snatch a little gain at the cost of making things worse for others In dealing with situations like that above (people trying to get more than others) and there are 2 ways of bringing about the attainment of mutual benefits through cooperation 1. Agreed contracts that can be enforced 2. Social norms that may work voluntarily in that direction CONTRACTARIAN REASONING AND ITS REACH The prudential argument for social cooperation and through that for social morality and politics, has extensive relevance for the understanding of societies and their successes and failures. Rawls use of the mutual benefit perspective has several important features, that differentiate it from the usual arguments for decent behaviour for the sake or mutual advantage: 1. Rawls analysis relies on peoples willingness to follow how they have agreed to behave The demonstration of mutual advantage as a prelude to contract in the original positions yields the contract, and that shapes the behaviour of human beings in societies with just institutions set up through the principles embedded in the contract 2. Rawls way of ensuring that in the original position no one can argue or bargain from the knowledge of his or her actual position in society, but has to do so from behind the veil of ignorance There is impartiality in this respect Through Rawls analysis, contractarian reasoning develops a reach well beyond the old territory if the contractarian literature. Despite this, Sen asks two questions on contractarian reasoning: 1. Does advantage-seeking, either directly or indirectly, provide the only robust basis of reasonable behaviour in society? 2. Should all political reasonableness be founded on mutual benefit and reciprocity?

POWER AND ITS OBLIGATIONS Obligations of power the argument that if someone has the power to make a change in the world, then he should do just that. - Presented by Gautama Buddha in Sutta-Nipata Buddha argues that we have a responsibility to animals because of the asymmetry between us. He says that since we are more powerful than other species, we have some responsibility towards other species that connects exactly with this asymmetry of power. Buddha also illustrates this point with an analogy of a mother and child mother helps child because she can do things to influence the childs life that the child itself cannot do. The mother recognizes that she can asymmetrically do things for the child that can make a difference in the childs life that the child itself cannot do. The justification for the above is: If some action that can be freely undertaken is open to a person, and if the person assesses that the undertaking of that action will create a more

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 20
just situation in the world, then that is argument enough for the person to consider seriously what he or she should do in view of these recognitions. (it is not a demand, but an argument acknowledging the obligation to consider the case for action) There are different approaches to the pursuit of reasonable behaviour. The seeking of mutual benefits is not the only kind of argument that is relevant to discussing what would be reasonable behaviour. Human rights approach has a strong element of social reasoning. Uses arguments that do not draw on the perspective of mutual benefit but concentrate instead on unilateral obligations because of asymmetry of power

Sens point: Mutual benefit, based on symmetry and reciprocity, is not the only foundation for thinking about reasonable behaviour towards others. Having effective power and the obligations that can follow unidirectionally from it can also be an important basis for impartial reasoning, going well beyond the motivation of mutual benefits.

10 Realizations, Consequence and Agency - RAMIREZ

TAGS. deontological, consequentialist, comprehensive outcome, culmination outcome, responsibility, agency FOCUS. This chapter basically addresses the concern that realization-focused approach tends to ignore the significance of social processes. STARTING POINT. From the Introduction, we know that Sens is pointing to a kind of justice that is concerned with the lives people are leading, their experiences and development of capacities (realization-focused), and not the kind that deals exclusively with institutions and rules within which people make choices (transcendental / arrangementfocused). SENS ARGUMENTS A comprehensive understanding of states of affairs or outcomes (via comprehensive consequentialism) can be integrated with an overall evaluation of social realizations. A full characterization of realizations should have room to include the exact processes through which the eventual states of affairs emerge. OUTLINE OF DISCUSSION i. Story of Mahabarata (particularly the part called Bhagavadgita or Gita) ii. Examination of issues of debate iii. Analysis iv. Making sense of the chapter DISCUSSION PROPER i. Story of Mahabarata (particularly the part called Bhagavadgita or Gita) Story of Gita (the debate) This is a dialogue-debate between Arjuna, a warrior-general duty-bound to lead the just war against his kingdom-usurping cousins, and Krishna, his adviser (who also happens to be the incarnation of god in human form). On the eve of the battle, Arjuna expresses his profound doubts to his adviser Krishna about the war on three grounds: (a) that the fight will result in carnage or so much killing (the tragedy) (b) that most of the killing will be done by him (Arjunas role) (c) that he has close ties with most of the people he will kill (affection) *Note: Arjuna does not doubt that he is on the right side and that they will

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 21
win. Arjuna tells Krishna that maybe they should just let the usurpers rule the kingdom because it would be the lesser of two evils. Krisha tells him he must give priority to his duty, i.e. to fight irrespective of consequences. ii. Examination of issues of debate (1) The two characters represents the dichotomy of two substantial positions Arjuna - represented consequentialist thinking (consequence-sensitive reasoning) Krishna represented deontological thinking (duty-centered, consequence-independent reasoning) (2) Arjunas grounds for doubting the war are based on three different, though interlinked, elements of reasoning. (a) that the fight will result in carnage or so much killing (the tragedy) -Arjuna believes that what happens to the world matters and should thus be significant in our moral and political thinking. One cannot close ones eyes to whats really happening and ignore the state of affairs that will emerge as a consequence of ones actions. The thought of many people dying engaged him to see the relevance of the actual world (significance of human lives). This could be linked to social realization. (b) that most of the killing will be done by him (Arjunas role) -Arjuna also takes account of his personal responsibility. He argues that a person whose decisions bring about some serious consequence must take personal responsibility for what results from his own choices. -Note here that Arjuna & Krishna have two interpretation of what Arjunas responsibilities are. For Arjuna, the results of ones choices and actions must matter in deciding what one should do (consequence-sensitive). For Krishna, one must do ones duties no matter what happens (deontological). -Arjuna is concerned not only about good consequences but also about who does what and in particular what he will himself have to do (agency) (c) that he has close ties with most of the people he will kill (affection) -Arjuna identifies the people he will have to kill and his personal relations to them (after all, the usurpers were his cousins and their armies are composed of people he knows). This is a distinctly positional concern which acknowledges a special responsibility towards others. -Relational obligations liked with family connections and personal affection xxx may be rightly excluded in some ethical contexts, but they call for accommodation within the broader reach of moral and political philosophy, including the theory of justice. iii. Analysis (1) Consequence-based arguments are concerned with outcomes (a) Outcome (definition) state of affairs that results from whatever decision variable we are concerned with, such as action or disposition. *Because outcomes are informationally rich (we cant describe the resulting state of affairs in its entirety), we only take note of the features we deem to be important.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 22
(b) Outcomes in the context of choice can incorporate processes of choice, and not just the narrowly defined ultimate result. This is especially true when the content of outcomes can be seen as including relevant agency information and all personal and impersonal relations that are important to the decisional problem at hand. (c) Culmination outcome v. comprehensive outcome Culmination outcome -Considers simple outcomes only (i.e. detached from processes, agencies, and relations) *This is the narrow, unattractive version of consequentialism Comprehensive outcome Includes: -action undertaken -agencies involved -processes used -along with simple outcomes (culmination outcome) *Arjuna decision theory falls under this category. Distinction is important because a consequence is more than just an aftermath. The appraisal of comprehensive outcomes can be an integral part of the assessment of state of affairs (i.e. the decision one makes considers both the desired consequence AND the set of actions to get to that desired consequence) (2) The idea of social realizations demands that outcomes be seen in these broader terms, taking note of actions, relations, and agencies. -Responsible choice is based on an assessment of social realization. (3) Consequence-sensitive reasoning (not the archetypal culmination-outcome consequentialism) has to be part of the discipline of responsible choice, based on the choosers evaluation of states of affairs, including consideration of all the relevant consequences viewed in light of the choices made and the comprehensive outcomes associated with what happens as a result (a) Personal responsibility has not been adequately recognized in consequentialist ethics because it comes from a utilitarian grounding (particularly walfarism) which has insisted that state of affairs be judged exclusively on utility information (e.g. happiness or desire-fulfillment), thus ignoring all other consequences (e.g. consequent state of affairs, particular acts, violations). (b) Sensitivity to consequence does not demand insensitivity to agencies and relations in evaluating what is happening to the world. - Roles of people in the development of state of affairs are totally different. Two people cant value the state of affairs in the exact same way. This would make a non-sense of taking note of agencies as integral part of the social realization. iv. Making sense of the chapter (*mostly from Zoilos link) The chapter addresses two objections to realization-focused approach (which Sen is advocating!) (1) (a) Objection - If just institutions are in place (arrangement-focused), then whatever happens as a result of the decisions people make within this framework (consistent with the preservation of this framework over time) is neither just nor unjust, since it is the product of voluntary choice under fair conditions. To correct such actions would be disrespect to autonomous agents (b) Sens response: A realization-focused approach includes freedom to choose (a significant component of well being).

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 23
(2) (a) Objection - The focus on outcomes ignores the important distinction between what happens and what one does. The focus on outcomes assumes that the only relationship one can have to a value is to promote its maximal realization (by whatever actions lead to this result) rather than to value ones own conduct (e.g. by a commitment not to perform at least some morally objectionable actions no matter their expected result). (b) Sens response: A focus on realizations permits assigning signficance to the processes through which states of affairs come about. His realization-based approach considers the comprehensive outcome, not simply the culmination outcome. A realization-focused approach can thus assign disvalue to the individuals doing something bad, over and above the disvalue of the bad thing happening (the less evil end does not justify the evil means) -> The consequence and the actions we do to get there are both important!

11 Lives, Freedoms and Capabilities - REYES


Nyaya- centrality of human lives in reasoned assessments of the world in which we live in In assessing our lives, we have reason to be interested not only in the kind of lives we manage to lead, but also in the freedom that we actually have to choose between different styles and ways of living Valuing Freedom Valuing of freedom has several supporters/ enthusiasts and critics/ detractors Divisions are not geographical (i.e. Asians are authoritarian while Europeans are pro-freedom)

2. Comprehensive outcome-Sees opportunity more broadly, taking note also of the way the person reaches the culmination situation *In analyzing capabilities of person to lead life he values: should it be assessed only in the culmination alternative (ending up with life you want) or by using a broader approach that takes note of the process of choice involved (other alternatives one could choose)? The Capability Approach Informational focus: how is an individuals overall advantage to be assessed? In contrast with utility-based or resource-based lines of thinking, individual advantage is judged in capability approach by a persons capability to do things he or she has reason to value A persons advantage in terms of opportunities is judged to be lower than that of another if she has less capability- less real opportunity- to achieve those things that she has reason to value Focus: freedom that a person actually has to do this or be thatthings that he or she might value doing or being Concept of capability is closely linked with the opportunity aspect of freedom, as seen in terms of comprehensive opportunities, and not just focusing on what happens at the culmination Features of Capability of Approach 1. Points to an informational focus in judging and comparing overall individual advantage and does not on its own, propose any specific formula about how information may be used It is a general approach, focusing on information on individual advantages, judged in terms of opportunity rather than a specific design for how a society should be organized Does not on its own propose specific formula for policy decisions

Freedom: Opportunities and Processes Reasons why freedom is valuable: 1. Opportunity: More freedom gives us more opportunity to pursue our objectives Ability to achieve what we value, no matter what the process is through which this came about 2. Process: Process of choice itself We are not forced into some state because of constraints imposed by others Example of Kim= Scenario (A) He decides to stay home (B) Thugs come and throw him to gutter (C) Thugs restrain him from leaving house and threatens to punish him if he does *Scenarios A & C: even if result is the same, there are distinctions in terms of opportunities (i.e. Opportunity to choose freely), not just process of choice Opportunity Aspect: Culmination outcome v. Comprehensive outcome 1. Culmination outcome- If we see opportunity in a narrow way and regard the existence of options and the freedom of choices to be unimportant

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 24
Assessment of societies and social institutions can be deeply influenced by the information on which the approach focuses Importance of perspective of capabilities and freedom (as opposed to achievement): 1.Even a tie between two persons in achieved functionings may still hide significant differences between the advantages of the respective persons which could make us understand that one person may be really much more disadvantaged than the other 2. Capability to choose between different affiliations in cultural life can have both personal and political importance 3. Responsibilities and obligations of societies and other people to help the deprived, which can be important for public provisions within states and for the general pursuit of human rights B. Plural composition of capabilities and role of reasoning in the use of capability approach Fear of Non-Commensurability Capabilities are non-commensurable since they are irreducibly diverse Commensurable: measurable in common units (two glasses of milk) Non-commensurable: several dimensions of value are irreducible to one another In evaluating a choice, commensurability requires that in assessing its results, we can see the values of all the relevant results in one dimension (measure the significance of all the distinct outcomes in a common scale) but choices are non-commensurable Non-commensurable results shows that the choicedecisions will not be trivial, but it does not mean that it is impossible or that it is always difficult to make choices Valuation and Public Reasoning Reflected evaluation demands reasoning regarding relative importance, not just counting Interactive public reasoning and public discussion extends the reach and reliability of valuations Connection: Public reasoning and the choice and weighing capabilities -No set of pre-determined weights in capability approach as the valuations used may reasonably be influenced by our own continued scrutiny and by the reach of public discussion -that agreements on weights may not be total will not disrupt evaluation of injustice or the making of public policy; all right that range is broad (ex. Slavery reduces the freedom of slaves)

2. Inescapably concerned with a plurality of different features of our lives and concerns

Focuses on human life: serious departure from concentrating on the means of living to the actual opportunities of living Change from means-oriented evaluative approaches, such as Rawls primary goods which are all purpose means such as income, wealth, powers etc. However, these means become the central issues in judging distributional equity. o Sen: this is a mistake; Primary goods are merely means to other things, in particular freedom Capability approach corrects this focus on means rather than on the opportunity to fulfill ends and the substantive freedom to achieve those reasoned ends

*Means of satisfactory human living are not themselves the ends of good living Ex. Person who has high income but prone to illness/ handicapped not advantaged just because of high income; we have to look at the extent to which she can actually achieve if she chooses to a state of good health and wellness to do things she has reason to value

Other Features of the Capability Approach A. Contrast between capability and achievement Why Go Beyond Achievement to Opportunity? Capability approach focuses not just on what a person ends up doing or what he is able to do, but whether or not she chooses to make use of that opportunity Critics: pay attention to achievement of functionings not capability to choose between achievements : life consists of what really happens not what could have happened (Sen: our freedom and choices are part of our lives) Capabilities are defined derivatively on functionings and include all the information on the functioning combinations that a person can choose Capability approach is more informationally inclusive; no loss in looking at broader capabilities

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 25
Main task: get things right on the comparative judgments that can be reached through personal and public reasoning, rather than to feel compelled to opine on every possible comparison that could be considered C. Place of individuals and communities and their interrelations in the conception of capabilities Capabilities, Individuals and Communities Capabilities: attributes of people, not collectives Critics: Capability approach is methodological individualism- all social phenomena must be accounted for in what individuals think, choose and do Capability approach does not assume such detachment; brings in social influence in terms of what persons value and what influences operate on their lives Critique is unwilling to distinguish between individual characteristics used in the capability approach and the social influences that operate on them (thinking, choosing and doing by individuals is just the beginning of recognizing what actually does happen; society influences our thinking, choosing and doing) -we recognize interdependence of valuations of individuals who interact with one another 2. A person belongs to many different groups, to see him merely as member of one particular group would be a major denial of the freedom of each person to decide how exactly to see himself/herself Sustainable Development and the Environment Defectiveness of the notion that environment is best protected if we interfere with it as little as possible 1. Value of environment cannot be just a matter of what there is, but also consists of opportunities it offers to people -impact of environment on human lives 2. Environment is not only a matter of passive preservation but also one of active pursuit -within human power to enhance and improve environment First definition of sustainable development (meeting future needs): to see people in terms of needs gives a meager view of humanity Second definition (maintaining living standards): our reason for valuing particular opportunities need not always lie in contribution to our living standards or our interests Proposed definition of sustainable development: broadened to encompass the preservation and expansion of substantive freedoms and capabilities of people today without compromising the capability of future generations We are agents whose freedom to decide what to value and how to pursue what we value can extend far beyond our interests and needs

Two issues 1. Presence of individuals who think, choose and act does not make an approach methodologically individualist -we have to draw on the individual valuation of persons since groups cannot reason out as one

12 Capabilities and Resources - GUANGKO


Chapter 12: Capabilities and Resources by Leslie Francis Chapter 12, Capabilities and Resources, begins with the well-known contrasts between capabilities (as what opportunities people actually have) and resourcist views. Sen then outlines four kinds of contingencies that figure importantly into the conversion of resources into the lives people can actually lead. These are: personal heterogeneities, differences in the physical environment, differences in the social climate, and differences in relational perspectives. Variations in the social climate refer to social structural differencesfor example, the availability of publicly funded health care. Differences in relational perspectives refer to difference in social norms that may affect the need for resource expenditure to achieve desired goals; for example, in one society, the clothes required to command social respect may be far more expensive than in another. These types of contingencies may be interconnected; an example would be how a physical environment in which there is a great deal of snow interacts with mobility impairments in affecting how people can get around in society.Sen places particular emphasis on the interrelationship between disability and the opportunities provided by resources. He cites familiar data about the interrelationship between disability and poverty, and notes that much disability is preventable (e.g. disabilities that result from preventable infectious diseases such as polio or measles) and that this is a particularly important

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 26
matter for social justice. Overall, Sen emphasizes both the conceptual and the normative importance of disability for theorizing about justice. The remainder of the chapter is devoted to criticizing Rawlsian primary goods and Dworkinian hypothetical insurance markets. Sen commends Rawls for paying attention to special needs, but contends that the Rawlsian structure mistakenly downplays human difference. Pace Rawls, human variations in conversion capacities should not be seen as derivative matters for attention at the legislative stage. Rather, in Sens view they are ubiquitous to how social structures should be organized and analyzed. Sen recognizes that the capabilities approach will not be able to give a complete or even a linear ordering of social states, but contends that it directs us to make the important comparisons about justice. Dworkins response to the point that resources translate differently in the face of human difference was a thought experiment: a hypothetical insurance market against particular handicaps, setting compensation amounts that people could then claim in the face of actual disadvantage. Dworkin then claimed that the capability view amounted either to this view, or to equality of welfare. Sen begins his response by noting that equality of capability is neither equality of the capability for welfare nor equality of welfare. He then states that even if resource equality were the same as capability equality, the latter puts the emphasis in the right place, on ends rather than on means. He then argues that because capability differences stem not only from personal heterogeneity but from other factors (see above), the asserted congruence between resource equality and capability equality is problematic as an empirical matter. Sen also raises several criticisms of the thought experiment of an idealized market, most importantly the role of individual atomistic judgments in setting market prices. In the chapter, the linkage between capability theory and non-ideal, comparative justice is clear: capability theory analyzes actual opportunities in given circumstances. As a non-ideal theorist, however, I found myself wanting more than the familiar criticisms of Rawls and Dworkin presented in this chapter. The very brief discussion of kinds of contingenciesfrom human heterogeneity to relational perspectivesis frustrating and tantalizing. There is no discussion (in this chapter at least) of whether these types of contingencies might matter differently in comparative justice. Nor is there (in my judgment) sufficient consideration of questions in disability theory (and elsewhere in political theory) about the appropriate roles for prevention and remediation. Such questions about prevention and remediation might also be raised about the other types of contingencies that affect capabilities. Different people can have quite different opportunities for converting income and other primary good into characteristics of good living (conversion of income to good life) Relationship between resources and poverty variable and contingent on certain characteristics (natural and social characteristics) Four sources of variation/ types of contingencies o Personal heterogeneities physical characteristics e.g. disabilities o Diversities in physical environment -environmental conditions (can alterable with communal efforts; either improvement or worsened) o Variations in social climate social conditions like public healthcare, public education, crime and violence; social capital o Differences in relational perspective established patterns of behavior in a community; personal resources needed for taking par in the life of the community ; intersocietal variation but it influences the relative advantages of two persons located in different countries Can be some coupling of disadvantages o Eg. Handicaps reduces ability to earn income; also make its it harder to convert income into capability

Capabilities and Resources Intro Wealth is evidently not the good we are seeking; for it is merely useful and for the sake of something else. Aristotle in Nicomachean Ethics Capabilities Approach as Basis of Evaluation (vis-vis advantages that the different people have compared with each other) vs. resource-centered concentration on income and wealth as the basis of evaluation Idea of Capability linked with Substantive freedom Actual Ability to do the different things that she values doing By proposing a fundamental shift in the focus of attention from the means of living to the actual opportunities a person has, the capabilities approach aims at a fairly radical change in the standard evaluative approaches used in economics and social studies Mean orientation, e.g. Rawls focus on primary goods all purpose means such as income and wealth, powers and prerogatives of office, the social bases of self respect and so on; it is the primary indicator of judging distributional equity

Poverty as Capability Deprivation

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 27
Real poverty vs. data; must note conversion difficulties Distribution of facilities and opportunities within the family (disproportionate distribution of income) extent of deprivation of members (eg. Girls) may not be adequately reflected by the aggregate value of the family income Rawlss difference principle concentrates entirely on primary goods in judging distributional issues in his principles of justice for the institutional basis of society Rawlss lack of concern about the importance of substantive freedom (referred in earlier chapters ??) He pays attention elsewhere to the need for correcting this resource focus in order to have a better grip on peoples real freedom (his pervasive sympathy for the disabled is reflected in other writings) Rawlss recommends special correctives for special needs such as disability and handicap though it is not part of his principles of justice; emerges NOT during the constitutional stage but later on in the use of the institutions thus set up particularly in the legislative stage o Is this adequate as a way of rectifying the partial blindness of the perspective of resources and primary goods Downplaying: different people (due to personal characteristics, influences of physical and social environments, or relative deprivation) widely varying opportunities to convert general resources into capabilities (variation in conversion opportunities); variations in conversion reflect pervasive variations in the human condition and in relevant social circumstances Limited reach (in that the emergence of special provisions for special needs is a later phase): why: 1. Corrections occur only after the basic institutions have been set up nature of these basic institutions are not influenced by these special needs 2. No attempt to come to terms with ubiquitous variations in conversion opportunities between people a. must be paid attention to because they make the informational focus on functionings and capabilities essential for thinking about social arrangements and social realizations, both in setting up the institutional structure and in making sure that they function well and with adequate use of humane and sympathetic reasoning Rawlss leaves the determination of just institutions for distributional fairness on primary goods to provide the basic institutional guidance

Disability, Resources and Capabilities People with disabilities, among the most neglected More than 600 million people, one in 10 live with some form of significant disability Poorest of the poor, need for income is grater require money and assistance to try to live normal lives and to attempt to alleviate their handicaps Impairment of income earning handicap; reinforced by difficulty in converting incomes and resources into good living, precisely because of disability conversion handicap Study, UK Wiebke Kuklys o 17.9% of individuals lived in families with income below the poverty line o 23.1% of indivs lived in families with disabled member below poverty line o 47.4% of indivs in families with disabled members with conversion handicap (note that the need for more income to ameliorate the disadvantages of disability a gap of nearly 20 percentage points over the share of individuals below the poverty line for the population as a whole alternative view: of the 20 extra percentage points for poverty disadvantage fir individuals living in families with a disabled member, about a quarter can be attributed to income handicap and threequarters to conversion handicap Tragic consequences of disability can be overcome policies o to diminish the penalty of disability but also to reduce its incidence social intervention against disability must include: prevention management, alleviation if demands of justice have to give priority to the removal of manifest injustice prevention and alleviation of disability must be fairly central Conceptual conservatism (concentration on income distribution) prevents understanding of the predicament of disability and its moral and political implications for social analysis o Distracts attention from the full rigor of social deprivation which combines conversion handicap with earning handicap

Departures from Rawlsian Theory Does not focus on transcendental institutionalism Focuses on the enhancement of justice through institutional and other changes does not relegate the issue of conversion and capabilities into something of secondary status to be brought up later

Rawlss Use of Primary Goods

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 28
2. If equality of resources were no different from equality of capability and substantive freedom why talk about equality of resources when its only a means an end why not put equality of resources in its place as a way of getting to equality of the capability to achieve if the congruence between the two does hold? a. No great mathematical difficulty, to say end = amounts of means; used in economic theory (utility analysis) b. Capability equality and Dworkinian resource equality (aka indirect capability), could be congruent if and only if insurance markets were to work in such a way under Dworkins formula for equality of resources everyone would have much the same capabilities i. But then all have the same resources, hurrah! Vs. all have the same substantive freedom or capability 3. Congruence may not hold since insurance markets can deal more easily with some objects better than others (weakness of insurance markets) a. Market for insurance against nonpersonal characteristics is much harder to accommodate in insurance markets with individual clients b. Who assesses? Sen public reasoning vs. Dworkin atomistic operators; market is charged to do the valuation exercise vs. public reasoning and interactive discussion 4. Dworkins focus is to get perfectly just institutions (in one step) transcendental institutionalism a. Vs. partial order ranking b. Market for insurance does not give us ways and means of identifying advancements of justice 5. Dworkin takes the existence, uniqueness and efficiency of perfectly competitive market equilibria to be perfectly unproblematic a. Vs. huge difficulties that exist in these presumptions b. Problems with general equilibrium Dworking institutional fundamentalism Innocence in his presumption that once we have agreed on some rules for insurance based resource redistribution, we would be able to forget about the actual outcomes and the actual capabilities that different people enjoy The insurance markets are supposed to work as one shot affairs, with no surprises no repeats and no discussions about what was hoped for and what actually emerged Insurance market as thought experiments vs. actual use o Useful for understanding how compensation for handicaps can be thought of in terms of income transfers Advancement of justice and the removal injustice demand joint engagement with institutional choice,

Understanding the nature and sources of capability deprivation and inequity central, removing of manifest injustice Concentrate on reducing manifest injustice the relevance of merely partial ranking for a theory of justice can be actually be rather momentous Central issue: not whether a certain approach (theory?) has a total reach in being able to compare any two alternatives but whether the comparisons it can make are appropriately directed and reasoned Comparisons of freedoms and capabilities Elizabeth Andersons: the capability metric is superior to a resource metric because it focuses on ends rather than on means, can better handle discrimination against the disabled, is properly sensitive to individual variations in functioning that have democratic import, and is well suited to guide the just delivery of public services, especially in health and education

Dwarkins Equality of Resources

Dwarkins use of resource perspective is to make room explicitly for taking note of these variations through artful market oriented thinking in particular by the use of an imagined primordial market for insurance against conversion handicaps hypothetical market selling insurance (imagined situation) o No one knows who will have a handicap; must buy this insurance against possible adversities o The ones that actually end up having the handicap can claim their compensation as determined by the insurance markets, thereby obtaining resources of other kinds in compensations Argues Dwarkin, this is as far as you can get equality of resources {did you know that Dwarkin and Sent ought a class together in Oxford??} beat that program of Dwarkin, directed at those who are afflicted by the capability-based approach o either equality of capability amounts really to equality of welfare, thus is a mistaken view of equity, or it amounts actually to the same situation as equality of resources, in which there is no real difference; no advantage in pursuing the capability approach

Sen argues: 1. Even if equality of capability were to amount to equality of capability for welfare, that would not be the same as equality of welfare. Sen is arguing neither for equality of welfare nor for equality of capability to achieve welfare

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 29
behavioral adjustment and procedures for the correction of social arrangements Cannot shut of interactive public reasoning

13 Happiness, Well-being and Capabilities - BALITE


IN CHAPTER 13, HAPPINESS, WELL-BEING, AND CAPABILITIES, SEN CONCENTRATES ON THREE ISSUES. THE FIRST IS THE SUCCESS OF ECONOMICS AS A DISCIPLINE IN ACCOUNTING FOR HAPPINESS AND ITS IMPORTANCE. THE SECOND IS THE RELATIONSHIP BETWEEN HAPPINESS AND CAPABILITY. THE THIRD IS THE RELATIONSHIP BETWEEN CAPABILITY AND WELLBEING. TURNING TO THE FIRST ISSUE, WELFARE ECONOMICS IS THE DISCIPLINE DEVOTED TO THE ASSESSMENT OF THE GOODNESS OF STATES OF AFFAIRS AND POLICIES. ACCORDING TO SEN, IT HAS BEEN AND LARGELY REMAINS UTILITARIAN IN CHARACTER. HAPPINESS IS OFTEN UNDERSTOOD AS THE SOLE DETERMINANT OF HUMAN WELLBEING/ADVANTAGE AND AS THE SOLE CRITERION FOR EVALUATING SOCIETIES AND POLICIES. WELLBEING/ADVANTAGE IS USUALLY DEFINED IN TERMS OF UTILITY. UTILITY IS DEFINED AS HAPPINESS. HAPPINESS IS UNDERSTOOD AS DESIRE-FULFILLMENT. POLICY EVALUATIONS ARE BASED ON A COMPARISON OF THE SUM TOTAL OF INDIVIDUAL WELFARES. MANY ECONOMISTS HOLD THAT INTERPERSONAL COMPARISONS OF UTILITY ARE IMPOSSIBLE. SEN ADVANCES THREE CRITICISMS OF WELFARE ECONOMICS. FIRST, SEN ARGUES THAT THE NEW WELFARE ECONOMISTS ARE MISTAKEN TO THINK THAT INTERPERSONAL COMPARISONS OF UTILITY ARE IMPOSSIBLE. WE CAN, SEN ARGUES, GET GENERAL AGREEMENT ON PARTIAL ORDERINGS OF THE JOY AND PAIN IN DIFFERENT LIVES. SECOND, THE INFORMATIONAL BASIS OF WELL-BEING/ADVANTAGE IN WELFARE ECONOMICS IS INCOMPLETE. IT SHOULD BE BROADENED TO INCLUDE FACTORS SUCH AS SUBSTANTIVE OPPORTUNITIES, NEGATIVE FREEDOMS, AND HUMAN RIGHTS. OMITTING THIS INFORMATION PREVENTS US FROM MAKING IMPORTANT DISTINCTIONS IN OUR JUDGMENTS OF THE RELATIVE ADVANTAGE OF INDIVIDUALS WHO ENJOY THE SAME LEVEL OF HAPPINESS, BUT DIFFER DRAMATICALLY ALONG THESE OTHER DIMENSIONS. OMITTING THIS INFORMATION ALSO LEADS TO DISTORTED ASSESSMENTS. INDIVIDUALS WHO ARE PERSISTENTLY DEPRIVED MAY ADAPT TO THEIR CIRCUMSTANCES TO MAKE LIFE TOLERABLE, LEARNING TO TAKE PLEASURE IN SMALL MERCIES AND REFUSING TO DESIRE OR HOPE FOR CHANGE IN THEIR CIRCUMSTANCES. IF WE ASSESS THE WELL-BEING/ADVANTAGE OF SUCH INDIVIDUALS ON THE BASIS OF THEIR HAPPINESS ALONE, THEN WE WOULD FAIL TO GET AN ACCURATE PICTURE OF THEIR ACTUAL DISADVANTAGE. THIRD, SEN ARGUES THAT CONTEMPORARY WELFARE ECONOMISTS FAIL TO SUFFICIENTLY RECOGNIZE THE LIMITS OF USING A MONETARY METRIC TO GAUGE UTILITY OR HAPPINESS. SEN REFERENCES EMPIRICAL EVIDENCE SUGGESTING THAT THERE IS NOT A DIRECT CORRELATION BETWEEN INCREASING WEALTH AND INCREASING HAPPINESS AND THE JOYLESSNESS OF THE LIVES OF INDIVIDUALS IN PROSPEROUS ECONOMIES. ON THE SECOND ISSUE, THE RELATIONSHIP BETWEEN HAPPINESS AND CAPABILITY, SEN ARGUES THAT HAPPINESS IS A VERY IMPORTANT HUMAN FUNCTIONING AND THE CAPABILITY TO BE HAPPY IS ONE ASPECT OF THE FREEDOM WE HAVE REASON TO VALUE. SEN ALSO NOTES THAT HAPPINESS AND OTHER CAPABILITIES ARE INTERRELATED. ACHIEVING CERTAIN GOALS AND THINGS WE VALUE CAN ITSELF BE A SOURCE OF HAPPINESS. CONVERSELY, FAILURE TO ACHIEVE THE THINGS WE VALUE CAN LEAD TO A DIMINISHMENT IN OUR HAPPINESS. THUS, HAPPINESS CAN BE OF GREAT CIRCUMSTANTIAL RELEVANCE IN CHECKING WHETHER PEOPLE ARE SUCCEEDING OR FAILING TO GET WHAT THEY VALUE AND HAVE REASON TO VALUE. FINALLY, SEN EMPHASIZES A FUNDAMENTAL DIFFERENCE BETWEEN CAPABILITY AND HAPPINESS. UNLIKE HAPPINESS, THE CAPABILITY OF AN INDIVIDUAL HAS IMPLICATIONS FOR HIS OR HER DUTIES AND OBLIGATIONS. THIS IS BECAUSE CAPABILITY, UNLIKE HAPPINESS, IS A KIND OF POWER. IN SENS VIEW, AN IMPORTANT GROUND FOR OUR DUTIES AND OBLIGATIONS STEMS FROM OUR EFFECTIVE POWER. IN HIS WORDS, IF SOMEONE HAS THE POWER TO MAKE A DIFFERENCE THAT HE OR SHE CAN SEE WILL REDUCE INJUSTICE IN THE WORLD, THEN THERE IS A STRONG AND REASONED ARGUMENT FOR DOING JUST THAT. SEN CONCLUDES BY DISCUSSING THE RELATIONSHIP BETWEEN CAPABILITY AND WELLBEING/ADVANTAGE. HE BEGINS BY MAKING TWO DISTINCTIONS RELATED TO WELL-BEING/ADVANTAGE. THE FIRST IS BETWEEN INDIVIDUAL WELL-BEING AND AGENCY. THE SECOND IS BETWEEN FREEDOM AND ACHIEVEMENT. WELL-BEING/ADVANTAGE CAN REFER TO EITHER THE PROMOTION OF AN INDIVIDUALS WELL-BEING OR THE PROMOTION OF AN INDIVIDUALS AGENCY GOALS. AGENCY GOALS ARE A BROADER CATEGORY OF GOALS, ENCOMPASSING EVERYTHING AN INDIVIDUAL HAS REASON TO PURSUE. THE PROMOTION OF WELL-BEING VERSUS AGENCY CAN SOMETIMES BE PARALLEL. SOME OF WHAT AN INDIVIDUAL HAS REASON TO PURSUE MIGHT INCLUDE HER OWN WELL-BEING, AND SO AN INCREASE IN WELLBEING WILL BE ALSO AN INCREASE IN AGENCY ACHIEVEMENT. HOWEVER, BECAUSE AGENCY FREQUENCY INCLUDES GOALS THAT ARE NOT DIRECTLY ABOUT INDIVIDUAL WELL-BEING, THE ACHIEVEMENT OF AGENCY GOALS CAN SOMETIMES BE AT THE EXPENSE OF INDIVIDUAL WELL-BEING. USING THE FREEDOM/ACHIEVEMENT DISTINCTION, WE CAN SEE THAT AN INDIVIDUALS ADVANTAGE/WELL-BEING MIGHT RELATE TO WELL-BEING ACHIEVEMENT, WELLBEING FREEDOM, AGENCY ACHIEVEMENT, OR AGENCY FREEDOM. KEEPING THESE DISTINCTIONS IN MIND, SEN CLAIMS THAT CAPABILITY, BROADLY UNDERSTOOD AS THE DIMENSION OF FREEDOM CONCERNED WITH SUBSTANTIVE OPPORTUNITIES, CAN INCLUDE BOTH WELL-BEING FREEDOM AND AGENCY FREEDOM. HE ARGUES THAT MORE CAPABILITY OFTEN ENHANCES

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 30
WELL-BEING/ADVANTAGE, WHEN WELLBEING/ADVANTAGE IS DEFINED IN TERMS OF AGENCY. HOWEVER, BECAUSE THAT SAME AGENCY FREEDOM CAN BE IN TENSION WITH, OR INDEED GO AGAINST, INDIVIDUAL WELL-BEING FREEDOM DEPENDING ON THE GOALS A PARTICULAR AGENT HAS, CAPABILITY MAY NOT ALWAYS ENHANCE WELL-BEING/ADVANTAGE UNDERSTOOD AS WELL-BEING FREEDOM. MOREOVER, SINCE GREATER AGENCY FREEDOM, OR EFFECTIVE POWER, HAS IMPLICATIONS FOR OUR DUTIES AND OBLIGATIONS, THE USE TO WHICH WE SHOULD PUT OUR EFFECTIVE POWER IS NOT ALWAYS IN A WAY THAT INCREASES INDIVIDUAL WELL-BEING. IN SENS WORDS, WHEN MORE CAPABILITY INCLUDES MORE POWER IN WAYS THAT CAN INFLUENCE OTHER PEOPLES LIVES, A PERSON MAY HAVE GOOD REASON TO USE THE ENHANCED CAPABILITY- THE LARGER AGENCY FREEDOM- TO UPLIFT THE LIVES OF OTHERS, ESPECIALLY IF THEY ARE RELATIVELY WORSE OFF, RATHER THAN CONCENTRATING ON THEIR OWN WELLBEING. THERE ARE TWO MAIN POINTS I WANT TO MAKE IN RESPONSE TO SENS DISCUSSION. THE FIRST IS THAT THERE IS A TENSION BETWEEN CENTRAL CLAIMS THAT SEN ADVANCES, STEMMING, I BELIEVE, FROM HIS FAILURE TO DEFINE WHAT HE MEANS BY HAPPINESS. SEN CLAIMS THAT CAPABILITIES ARE A KIND OF POWER AND, AS SUCH, PROVIDE GROUNDS FOR THE DUTIES AND OBLIGATIONS OF INDIVIDUALS. IN THIS RESPECT, HE CLAIMS, CAPABILITY AND HAPPINESS ARE DIFFERENT; ONLY CAPABILITY GROUNDS DUTIES. YET, LATER IN THE CHAPTER, SEN CLAIMS THAT HAPPINESS IS AN IMPORTANT FUNCTIONING, AND THE CAPABILITY TO BE HAPPY IS ONE CAPABILITY INDIVIDUALS HAVE REASON TO VALUE. THIS WOULD SUGGEST THAT HAPPINESS, OR THE CAPABILITY FOR HAPPINESS, CAN GROUND DUTIES. ON THE FACE OF IT, THE CLAIM THAT HAPPINESS IS NOT A POWER AND SO CANNOT GROUND DUTIES, AND THE CLAIM THAT HAPPINESS IS A CAPABILITY, WHICH IMPLIES IT CAN GROUND DUTIES, ARE INCONSISTENT. PERHAPS WHEN SEN DISCUSSES HAPPINESS IN THE CONTEXT OF THE CAPABILITY HE HAS A DIFFERENT CONCEPTION OF HAPPINESS THAN THE STANDARD UNDERSTANDING IN WELFARE ECONOMICS. INDEED, THERE ARE ARISTOTELIAN ROOTS IN MANY DISCUSSIONS OF CAPABILITY, AND SO PERHAPS WHAT SEN HAS IN MIND BY HAPPINESS IS A KIND OF FLOURISHING AND NOT SIMPLY DESIRE SATISFACTION. HOWEVER, IF SEN HAS IN MIND A DIFFERENT UNDERSTANDING OF HAPPINESS, THERE IS NO DISCUSSION OF WHAT THAT ALTERNATIVE UNDERSTANDING IS. ALTERNATIVELY, PERHAPS THE CAPABILITY FOR HAPPINESS IS AN EFFECTIVE POWER IN THE WAY THAT THE FUNCTIONING OF HAPPINESS IS NOT. HOWEVER, IT IS NOT CLEAR WHY OR HOW ADDING CAPABILITY IN FRONT OF HAPPINESS FUNDAMENTALLY TRANSFORMS THE NORMATIVE SIGNIFICANCE OF HAPPINESS. THE SECOND QUESTION THE DISCUSSION IN THIS CHAPTER RAISES IS ABOUT THE NORMATIVE GUIDANCE A CAPABILITY APPROACH CAN PROVIDE. THERE ARE A NUMBER OF PLACES IN THE CHAPTER WHERE SENS DISCUSSION IS FRUSTRATINGLY SILENT ON THE CRITERIA BY WHICH WE MAKE CRUCIAL CHOICES TO WHICH THE CAPABILITY FRAMEWORK GIVES RISE. FOR EXAMPLE, SEN ARGUES THAT, DEPENDING ON THE PURPOSE OF A GIVEN ASSESSMENT EXERCISE, INDIVIDUAL ADVANTAGE MAY BEST BE CONCEPTUALIZED AS WELL-BEING FREEDOM, WELL-BEING ACHIEVEMENT, AGENCY FREEDOM, OR AGENCY ACHIEVEMENT. HE MENTIONS A FEW CASES IN WHICH ONE OF THESE FOUR DIMENSIONS SEEMS MOST RELEVANT. HOWEVER, HE OFFERS NO GUIDANCE AS TO THE GENERAL CRITERIA WE SHOULD USE TO MAKE THE DECISION ABOUT WHICH DOMAIN OF ADVANTAGE IS RELEVANT IN OTHER CASES. IS THIS DECISION DRIVEN BY FACTORS EXTERNAL TO THE IDEA OF WELLBEING OR AGENCY, SUCH AS LIBERAL THEORIES ABOUT THE APPROPRIATE ROLE OF THE STATE? OR DO WELL-BEING AND AGENCY THEMSELVES PROVIDE CRITERIA OR GUIDANCE THAT CAN AID IN SUCH DECISIONS? PRESUMABLY, INSOFAR AS SEN BELIEVES THE DISTINCTIONS BETWEEN WELL-BEING/AGENCY AND FREEDOM/ACHIEVEMENT ARE IMPORTANT AND SUBSTANTIVE THE DISTINCTIONS CAN PROVIDE SOME GUIDANCE ON THE QUESTION OF CHOICE. HOWEVER, SEN NEVER SPELLS OUT HOW THIS IS SO. ANOTHER PLACE WHERE THE NORMATIVE GUIDANCE OF THE CAPABILITY APPROACH COMES UP IS IN SENS DISCUSSION OF THE WAY CAPABILITY GROUNDS DUTIES AND OBLIGATIONS. HERE THE QUESTION IS WHAT THE NATURE OF THE DUTY OR OBLIGATION IS THAT SEN HAS IN MIND. HOW ARE WE TO UNDERSTAND THE WEIGHT OF THE DUTY THAT STEMS FROM THE FACT THAT WE ARE IN A POSITION TO REDUCE A CERTAIN KIND OF INJUSTICE? IS SEN ADVOCATING A UTILITARIAN APPROACH, IN WHICH WE MUST ACT SO AS TO REDUCE INJUSTICE WHENEVER DOING SO WOULD HAVE THE BEST CONSEQUENCES, REGARDLESS OF THE SACRIFICE TO OUR OWN WELLBEING AND AGENCY? OR RATHER ARE INDIVIDUALS TO DECIDE FOR THEMSELVES HOW TO WEIGH THE DUTIES THEY HAVE TO OTHERS TO USE THEIR EFFECTIVE POWER TO REDUCE INJUSTICE AGAINST THEIR INDIVIDUAL REASONS TO PURSUE THEIR OWN WELLBEING AND AGENCY GOALS? OR DOES THE CAPABILITY APPROACH ITSELF OFFER PRINCIPLED GUIDANCE ON HOW THE IMPORTANCE OF RESPECT FOR AGENCY FREEDOM IS TO BALANCED AGAINST THE DUTIES THAT EFFECTIVE LEFT POWER GENERATES? PRECISELY THE DUTY SEN NEVER OF IN ADDRESSES THIS QUESTION, AND SO AGAIN WE ARE WONDERING WORK WHAT KIND NORMATIVE GROUNDED

EFFECTIVE POWER IS DOING AND WHAT NORMATIVE GUIDANCE THE CAPABILITY FRAMEWORK PROVIDES TO QUESTIONS OF JUSTICE.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 31

14 Equality and Liberty VILLA-REAL


Main points (?): The really critical question is equality of what? as opposed to why equality or whether we need equality at all in any space whatsoever. The demand for seeing people as equals relates to the normative demand for impartiality, and the related claims of objectivity. Even if there are substantive differences between the endorsement of spaces, there is a basic egalitarian similarity across perspectives that has been overlooked. General pattern / Basic similarity: all the theories seem to be arguing against equality in some (seemingly less relevant) space, on the grounds that it violates the more important requirement of equality (egalitarian priority) in some other space. It is not right to presume that we can demand equality of capability. o Reasons: 1. Capability is only one aspect of freedom, related to substantive opportunities, and it cannot pay adequate attention to fairness and equity involved in procedures that have relevance to the idea of justice. a. The central issue here concerns the multiple dimensions in which equality matters, which is not reducible to equality in one space only, be that economic advantage, resources, utilities, achieved quality of life or capabilities. Sen criticizes the capability perspective, being a unifocal understanding of the demands of equality, as part of a larger unifocal view of equality in general. There can be other demands on distributional judgments, which may not be best seen as demands for equal overall freedom for different people, in any clear sense. Capability does not speak in one voice, since it can be defined in different ways, which include the distinction between well-being freedom and agency freedom. Equality is itself not the only value with which a theory of justice need be concerned, and it is not even the only subject for which the idea of capability is useful.

2.
3. 4.

There is a need to see freedom in plural terms, rather than seeing it as having only one feature. The effectiveness of preference can occur in different ways. 1. A person can bring about the chosen result through her own actions, yielding that particular outcome this is the case of direct control. But direct control is not necessary for effectiveness. 2. There is the broader consideration of whether a persons preferences can be effective whether through direct control or through the help of others. (Effective power through indirect control). Republican or neo-Roman theory: Liberty is defined not just in terms of what a person is able to do in a certain sphere, but also includes the demand that others could not have eliminated that ability of this person even if they wanted to do so. In this view, a persons liberty may be compromised even in the absence of any interference, simply by the existence of the arbitrary power of another which could hinder the freedom of the person to act as they like, even if that intervening power is not actually exercised. The impossibility of the Paretian liberal - This takes the form of showing that if people can have any preferences they like, then the formal demands of Pareto optimality may conflict with some minimal demands of personal liberty. (Pareto optimality the best that can be achieved without disadvantaging another.) Solution by collusion The suggestion that the problem is resolved if the parties involved have a Paretoimproving contract, whereby Prude reads the book to prevent Lewd from reading it. Both equality and liberty must be seen as having several dimensions within their spacious contents. We have reason to avoid the adoption of some narrow and unifocal view of equality or of liberty, ignoring all other concerns that these broad values demand. This plurality has to be a part of a theory of justice, which must be

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 32
alive to several different considerations that each of these grand ideas liberty and equality invokes.

Introduction to the Chapter

Recent normative theories of social justice seem to demand equality of something, which is regarded as particularly important in that theory. Equality is sought in some space that takes a central role in that theory. In the case of utilitarianism though, this generalization does not apply. Utilitarians do not, in general, want the equality of the utilities enjoyed by different people only the maximization of the sum-total of utilities, irrespective of distribution, which may not look particularly egalitarian. And yet there is an equality that utilitarians seek: equal treatment of human beings in attaching equal importance to the gains and losses of utilities by everyone, without exception. This insistence on equal weights on everyones utility gains relates to the foundational principle of utilitarianism of giving equal weight to the equal interests of all the parties, and to the utilitarian requirement for always assigning the same weight to all individuals interests. The need for some egalitarian formula in defending a theory indicates the significance widely attached to nondiscrimination; without which a normative theory of justice would be baseless. There seems to be a recognition here of the need for impartiality in some form for the viability of a theory. There may well be a strong connection between general acceptability and non-discrimination, demanding that, at some basic level, people must be seen as equal, whose rejections would respectively matter. I. Equality, Impartiality and Substance

The capability approach o Draws on the understanding that the really critical question is equality of what? as opposed to why equality or whether we need equality at all in any space whatsoever.

Impartiality and objectivity o o The demand for seeing people as equals relates to the normative demand for impartiality, and the related claims of objectivity. Acceptable justifications for impartiality and objectivity also have to be scrutinized. But that is the kind of scrutiny that would be ultimately involved in understanding why each of the pre-eminent theories of justice tends to involve some way of treating persons as equal at some basic level. Being an egalitarian is not a uniting feature, based on the need to first determine equality of what? Even if there are substantive differences between the endorsement of spaces, there is a basic egalitarian similarity across perspectives that has been overlooked.

o o

Ex. Harry Frankfurt (in a collection of essays edited by William Letwin called Against Equality), argues against equality as a moral ideal by cogently disputing the claims of what he calls economic egalitarianism in the form of the doctrine that it is desirable for everyone to have the same amounts of income and wealth (or, money).

o
o

But Frankfurt uses equality as a moral ideal to refer specifically to a particular version of economic egalitarianism: the doctrine that there should be no inequalities in the distribution of money. Thus, his arguments dispute the specific demand for a common interpretation of economic egalitarianism by: (1) disputing that such an equality is of any intrinsic interest, and (2) showing that it leads to the violation of intrinsically important values (like paying more relevant attention to others). The choice of space for equality is therefore critically important in the development of Frankfurts thesis.

General pattern / Basic similarity: all the theories seem to be arguing against equality in some (seemingly less relevant) space, on the grounds that it violates the more important requirement of equality (egalitarian priority) in some other space.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 33
II. Capability, Equality and Other Concerns

It is not right to presume that we can demand equality of capability Why? First, capability is only one aspect of freedom, related to substantive opportunities, and it cannot pay adequate attention to fairness and equity involved in procedures that have relevance to the idea of justice. o While the idea of capability has considerable merit in the assessment of the opportunity aspect of freedom, it cannot possibly deal adequately with the process aspect of freedom. Capabilities are characteristics of individual advantages, and while they may incorporate some features of the processes involved, they fall short of telling us enough about the fairness or equity of the processes involved, or about the freedom of citizens to invoke and utilize procedures that are equitable. Ex. Given equal symmetric care to both men and women, women still live longer than men. To create opportunity equity (equality of the capability to live long), more care must be given to the men for them to live just as long as the women. But giving men more medical attention than women would violate significant requirements of process equity (i.e. treating similar persons equally in matters of life and death). Thus, demands of equity in the process aspect of freedom could sensibly override any single-minded concentration on the opportunity aspect of freedom, including prioritizing equality in life expectancy. Thus, while the capability perspective may be very important in judging peoples substantive opportunities; that point does not in any way go against the need to pay fuller attention to the process aspect of freedom in the assessment of justice. A theory of justice or more generally an adequate theory of normative social choice has to be alive to both the fairness of the processes involved and to the equity and efficiency of the substantive opportunities that people can enjoy. Capability is, in fact, no more than a perspective in terms of which the advantages and disadvantages of a person can be reasonably assessed. Procedural concerns cannot be addressed through concentrating only on capabilities. Neither justice, nor political or moral evaluation, can be concerned only with the overall opportunities and advantages of individuals in a society. The central issue here concerns the multiple dimensions in which equality matters, which is not reducible to equality in one space only, be that economic advantage, resources, utilities, achieved quality of life or capabilities. Sen criticizes the capability perspective, being a unifocal understanding of the demands of equality, as part of a larger unifocal view of equality in general.

Second, there can be other demands on distributional judgements, which may not be best seen as demands for equal overall freedom for different people, in any clear sense. o Ex. In introduction (the three boys fighting for the flute). One boy argues that he should get the flute because he made the flute on his own. The line of reasoning that gives an important status to efforts and the rewards that should be associated with labor, which also yields such normative ideas as exploitation, can suggest grounds for pausing before going single-mindedly for equality of capability.

Third, capability does not speak in one voice, since it can be defined in different ways, which include the distinction between well-being freedom and agency freedom. o The ranking of capabilities, even with a specific focus (such as agency or well-being) need not generate a complete ordering, particularly because of the reasonable variations in the choice of relative weights to be attached to different types of capabilities, or different types of functionings. While a partial ordering may be adequate enough to judge inequalities in some cases, especially in identifying some situations of blatant inequality, it need not yield clear inequality judgements in other instances. It is important to see the limits of the reach of capability equality as one part of the demands of justice.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 34
Fourth, equality is itself not the only value with which a theory of justice need be concerned, and it is not even the only subject for which the idea of capability is useful.

If we make the simple distinction between aggregative and distributive considerations in social justice, the capability perspective with its pointer to an important way of assessing advantages and disadvantages has implications for both aggregative and distributive concerns. Equality of capability, or more realistically reduction of capability inequality, certainly has claims on our attention, but so has the general advancement of the capabilities of all.

Through denying the case for single-minded concentration on capability equality, or for that matter on capability-based considerations in general, we do not denigrate the critically significant role of capabilities in the idea of justice. The reasoned pursuit of a very important element in social justice, which does not crowd out everything else, can still have a crucial role in the enterprise of enhancing justice. III. Capability and Personal Liberties

There are good grounds for giving personal liberty some kind of a real priority (though not necessarily in the extremist lexicographic form chosen by Rawls). o Giving a special place a general pre-eminence to liberty goes well beyond taking note of the importance of liberty as one of many influences on a persons overall advantage. Liberty is indeed useful, like income and other primary goods, but that is not all that is involved in the importance of liberty, since it touches our lives at a very basic level and it demands that others should respect these deeply personal concerns that everyone tends to have. This distinction is crucial to bear in mind when we compare the competing claims of primary goods and capabilities for one limited purpose in the assessment of justice: how to evaluate general distributive concerns, based on comparisons of overall individual advantages. That is, of course, the subject matter of Rawlss difference principle, but it is just one part of a larger theory of Rawlsian justice. When capabilities can do the job of judging the overall advantages of different people better than primary goods, then that is precisely what is being affirmed and not anything more. There is no claim here that the capability perspective can take over the work that other parts of Rawlsian theory demand, particularly the special status of liberty and the demands of procedural fairness. Capabilities cannot do that work any more than primary goods can. The contest between primary goods and capabilities is in a limited arena, in a specified domain, concerned with the assessment of overall advantages that the individuals respectively have. With regard to Rawlsian reasoning underlying the first principle (i.e. the importance of the priority of personal liberty shared equally by all), it is useful to consider whether this priority must be as absolute as Rawls makes it out to be. Why must any violation of liberty, significant as it is, invariably be judged to be more crucial for a person or for a society than suffering from intense hunger, starvation, epidemics and other calamities? We have to distinguish between giving some priority to liberty (not treating it merely as one of the components in the large bag of primary goods, since liberty is so central to our personal lives), and the extremist demand of placing a lexicographic priority on liberty, treating the slightest gain of liberty no matter how small as enough reason to make huge sacrifices in other amenities of a good life no matter how large. Rawls argues persuasively for the former, and yet chooses, in the formulation of the difference principle, the latter. We can be Rawlsian in the former sense, as far as the priority of liberty is concerned, without signing up for the latter. The exact extent of priority that may be given, in a particular case, to personal liberty would certainly be a good subject for public reasoning, but Rawlss main success here seems to me to lie in showing why personal liberty has to be given a pre-eminent place in public reasoning in general. His work has helped to generate the understanding that justice in the world in which we live demands a very special concern with liberties that all can share. The important point to note here is that liberty has a place in a just social arrangement that goes well beyond recognizing liberty to be a part of personal advantage, in the way income or wealth is. Even as the role of substantive freedoms in the form of capabilities is emphasized in the present work (departing from Rawls), there is no necessity there to deny the special role of liberty. IV. The Plural Features of Freedom

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 35

Close examination of the contents of freedom; the need to see freedom in plural terms, rather than seeing it as having only one feature The plurality of aspects of freedom can be approached and identified in other ways as well, besides the already discussed distinction between the opportunity and process aspects. Freedom to achieve what one reasonably wants to achieve relates to a variety of factors, and they can have varying relevance to different concepts of freedom. The question whether a person can bring about the objects of her reasoned choice is crucial to the idea of freedom that is being pursued here, of which the notion of capability is a part. But the effectiveness of preference can occur in different ways.

o
o

First, a person can bring about the chosen result through her own actions, yielding that particular outcome this is the case of direct control. But direct control is not necessary for effectiveness. Second, there is the broader consideration of whether a persons preferences can be effective whether through direct control or through the help of others.

Illustrations of the indirect power to bring about the preferred results vary from such simple cases of acting through an attorney or loyal friends or relations, to more complex ones in which a doctor takes decisions for a person to bring about a result that the patient would actually choose, given enough knowledge and understanding: the issue of effective power. The importance of effective power through indirect control calls for some discussion, particularly since it is so common to see freedom as being nothing other than control, and being given the choice to do certain things oneself. Many of the freedoms that we exercise in society work through some process other than direct control. example: a doctor making decisions for a person unconscious, but deciding based on what the patient would want if he/she were conscious. Even though respecting the freedom of the patient may often have the same requirements as the advancement of the well-being of the patient, the two need not coincide. The guidance of well-being can differ possibly quite sharply from the demands of the effective freedom of the patient. The idea of effective freedom can be extended to more complex cases of societal arrangements, for example where the civic authorities looking after regional epidemiology arrange to eliminate local epidemic (what the people, it is known, want). The idea of effectiveness would apply to the group and its members, and effective freedom here takes a social or a collaborative form, but it is still a case of effectiveness without any individual having any specific control over the societal decision. o The distinction is between the local authorities undertaking some policy on the grounds that this is what the people want and would, given the option, choose, and the authorities undertaking that policy on the grounds that this would enhance, in the view of the administrators, the welfare of the people in the locality. The second is, of course, a worthy enough reason, but it is not quite the same reason as the first.

A different kind of distinction would be that between being able to get some result precisely because of having that preference, perhaps in conformity with the preferences of the others involved, and a person being able to get what one wants due to good luck. It may just turn out, for one reason or another, that precisely what this person wants actually does occur. There is fulfilment here, but not necessarily any effectiveness of ones preferences since there may be no influence of ones priorities on what occurs. There is not only no control here (direct or indirect), but not even any exercise of power, through whatever means, to produce a result in line with ones preferences. One succeeds with one set of preferences but does not necessarily do so with another.

There is a freedom of some importance in being able to follow ones preferred lifestyle, despite there being no real freedom of choice. This distinction relates to one involving the contrast between capability in general and capability without dependence, emphasized in a specific approach to freedom called the republican view, developed particularly by Philip Pettit.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 36

V. Capability, Dependence and Interference Some people use the terms liberty and freedom quite interchangeably, and treat the two as if they were much the same. In Rawlss arguments for priority of liberty there is, however, a special concern with freedom in personal lives, and especially freedom from intrusive interference by others, including the state. Going beyond what people can taking everything into account actually do, Rawls also investigates the importance of people being at liberty to lead their own lives as they would like, and in particular the liberty not to be messed around by the interference of others. In some theories of freedom, for example what is called republican or neo-Roman theory, liberty is defined not just in terms of what a person is able to do in a certain sphere, but also includes the demand that others could not have eliminated that ability of this person even if they wanted to do so. In this view, a persons liberty may be compromised even in the absence of any interference, simply by the existence of the arbitrary power of another which could hinder the freedom of the person to act as they like, even if that intervening power is not actually exercised. Philip Pettit has argued against the view of freedom as capability on republican grounds, since a person may have the capability to do many things that are dependent on the favour of others, arguing that to the extent the persons actual choices (or achievements) are dependent in this way, he is not really free. Certainly being free to do something independently of others (so that it does not matter what they want) gives ones substantive freedom a robustness that is absent when the freedom to do that thing is conditional either on the help or on the tolerance of others, or dependent on a coincidence between what the person wants to do and what the other people who could have stopped it happen to want. Ex. enslaved people remain slaves even if their choices never conflict with the will of their master. The republican idea of freedom cannot replace the perspective of freedom as capability. There is room for both ideas, which need not be a source of tension at all, unless we insist on a single-focus idea of freedom, against which is already mentioned. Consider three alternative cases related to a disabled person A who cannot do certain things by herself, without help.

o o

Case 1: Person A is not helped by others, and she is thus unable to go out of her house. Case 2: Person A is always helped by helpers arranged either by a social security system in operation in her locality (or, alternatively, by volunteers with goodwill), and she is, as a result, fully able to go out of her house whenever she wants and to move around freely. Case 3: Person A has well-remunerated servants who obey and have to obey her command, and she is fully able to go out of her house whenever she wants and to move around freely.

In terms of capability, as defined in the capability approach, Cases 2 and 3 are largely similar as far as the disabled person is concerned, and they both contrast in the same way with Case 1, in which she does lack the capability in question. There is clearly something of substance in this contrast between being able to do something and not being able to do it, since it does matter what a person is actually capable of doing. The republican approach would, however, see the disabled person as being unfree in both Cases 1 and 2: in Case 1 because she cannot do what she wants to do, and in Case 2 because her ability to do what she wants to do is context-dependent, depending as it does on the existence of a particular social security system, and it may even be favour-dependent on the goodwill and generosity of others. It can certainly be said that A is free in a way in Case 3 that she is not in Case 2. The republican approach captures this difference, and has a particular discriminating power that the capability approach lacks. However, all this does not remove the importance of the distinction on which the capability approach focuses: can the person actually do these things or not? There is an extremely important contrast between Case 1, on the one hand, and Cases 2 and 3, on the other. It is this distinction that the capability approach tries to capture, and it is a momentous distinction to acknowledge in general and to be recognized in the making of public policy in particular. Placing Cases 1 and 2 in the same box of non-freedom, without further distinction, would steer us towards the view that instituting social security provisions, or having a supportive society, cannot make any difference to anyones freedom, when dealing with disabilities or handicaps. For a theory of justice that would be a huge lacuna.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 37

Indeed, there are many exercises in which it is particularly important to know whether a person is really able to do the things that she would choose to do and has reason to choose to do. o For example, individual parents may not be able to set up their own school for their children, and may be dependent on public policy, which may be determined by a variety of influences, such as national or local politics. And yet the establishment of a school in that region can be sensibly seen as increasing the freedom of the children to be educated. This case contrasts sharply with a case in which there are no schools in the region and no freedom to receive school education. The distinction between the two cases is important enough and on this the capability approach concentrates, even though in neither case can the person bring about her own schooling independently of the support of the state or support from others.

The tension between capability and republicanism as approaches to freedom arises if and only if we have room for at most one idea. It arises when looking for a single-focus understanding of freedom, despite the fact that freedom as an idea has irreducibly multiple elements. The republican view of freedom, adds to the capability-based perspective, rather than demolishing the relevance of that perspective as an approach to freedom. There is also a distinction that concentrates on whether a persons failure of capability is due to the interference of others. We concentrate here not on the power to intervene effectively whether or not that power is exercised that would be a republican concern but the actual use of such interference. The distinction between potential and actual interference is significant. The focus on the interference of others as the central feature of the negation of liberty is, thus, a Hobbesian idea. There is no embarrassment in accommodating several distinct features within the idea of freedom, focusing respectively on capability, lack of dependence and lack of interference. Those who want one canonical understanding of the true nature of freedom may underestimate the very different ways in which ideas of freedom and non-freedom can enter our perception, assessment and evaluation. There should be no great difficulty in being able to see several different aspects of freedom as being complementary rather than competitive. A theory of justice can pay attention to each. Indeed, the approach to justice presented in this work makes room for pervasive plurality as a constituent feature of the assessment of justice. The plurality of aspects of freedom fits right into that capacious framework.

VI. The Impossibility of the Paretian Liberal The capability to influence an outcome in the direction one wants can be, as argued, an important part of freedom. The understanding of an outcome can, when relevant, take substantive note of the process through which a final state a culmination outcome comes about. Process-inclusive view of an outcome = comprehensive outcome Pareto optimality the best that can be achieved without disadvantaging another In social choice theory, which is concerned with social states, the result-oriented view of freedom has particularly received attention. A result that has generated something of a literature of its own is a rather simple theorem called the impossibility of the Paretian liberal. This takes the form of showing that if people can have any preferences they like, then the formal demands of Pareto optimality may conflict with some minimal demands of personal liberty. Example: There is an allegedly pornographic book and two possible readers. The person called Prude hates the book, will not like to read it, but would suffer even more from its being read by the other person called Lewd who loves the book (Prude is particularly bothered that Lewd may be chuckling over the book). Lewd, on the other hand, would love to read the book, but would prefer even more that Prude reads it (agonizingly, Lewd hopes). So, what to do? There is here no liberty-supported case for no one reading the book, since Lewd clearly wants

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 38
to read it, and it is none of Prudes business to interfere in that decision. Nor is there a liberty-based case for Prude reading the book, since he clearly does not want to read the book, and it is none of Lewds business to weigh in in that choice in which he is not directly involved. The only remaining alternative is for Lewd to read the book, which would of course be exactly what would happen if each person were to decide what to read (or not read). However, in their preferences, as described, both Prude and Lewd prefer Prudes reading the book over Lewds reading it, so that self-chosen alternative seems to go against the Pareto principle judged in terms of what the two individuals like, since both like Lewds reading it less than Prudes reading it. But the other two alternatives violated minimal demands of liberty, so nothing can be chosen that satisfies the specified demands of social choice, since each available alternative is worse than some other alternative. Hence the impossibility of simultaneously satisfying both the principles. Solution by collusion the suggestion that the problem is resolved if the parties involved have a Paretoimproving contract, whereby Prude reads the book to prevent Lewd from reading it. How much of a solution is this? There is, first, a very general methodological point. A Pareto-improving contract is always a possibility in any Pareto-inefficient situation. General problem with this way of seeking a solution: A Pareto-improving contract may not be viable, since the incentive for breaking it can be strong. We have to consider the credibility of such a contract, and the difficulty of ensuring its compliance. Attempts at enforcing such contracts in the name of liberty can endanger liberty itself. Those who seek a liberal solution that would demand such intrusive policing in personal lives must have a rather odd idea of what a liberal society should be like. Of course, such enforcement would not be necessary if people were to conform voluntarily to the agreement. If individual preference is taken to determine choice then this possibility is not open, since Prude will not read the book, given that choice. If, on the other hand, preferences are taken to represent peoples desires (not necessarily their choices), which is perhaps more sensible in this case, then it is, of course, possible to argue that even though Prude and Lewd both desire to act in a way contrary to the contract, they need not actually act that way, since they have signed a contract and thus have reason to resist being slaves to their desires. But if actions that go contrary to felt desires are permitted, then why should we assume that Prude and Lewd would choose to have such a contract in the first place? It is not at all obvious why Prude and Lewd must go for a peculiarly other-regarding social contract by which Prude agrees to read the book he hates in order to make eager-to-read Lewd refrain from reading it, and Lewd in turn agrees to forgo reading a book he would love to read in order to make reluctant Prude read it instead. If people attach some importance to minding their own business rather than just following their desires, then that odd contract need not in fact materialize. The good liberal practice of reading what one likes and letting others read what they like can perhaps survive the apparent temptations of having this remarkable contract. It is hard to see solution by collusion as a solution at all. The real issue concerns the adequacy of the reasons for having such a contract in the first place, and then for sticking to it. Of course, no-nonsense maximization of pleasure or desire-fulfilment (ignoring the principle of minding ones own business) could provide some reason for seeking or accepting such a contract. But this would also give both Prude and Lewd good reasons for reneging on the contract if signed, and in considering the contract, both Lewd and Prude would have to take note of this fact. More importantly, even for desire-based choice, we must distinguish between a desire that someone should act in a particular way, and a desire for a contract enforcing that this person must act in that way. If outcomes are seen in comprehensive terms, the two objects of desire are not at all the same. Lewds general desire that Prude should read the book need not at all entail a desire to have a contract that would enforce Prudes reading the book. The introduction of a contract brings in issues that cannot be escaped by just referring to simple desires regarding individual actions without any contracts. The impossibility of the Paretian liberal, is best seen as a contribution to public discussion, which is one of the major uses of social choice theory and is central to the approach to justice in this work. VII. Social Choice versus Game Forms

Robert Nozick characterizes rights to liberty in terms of giving the individual control over certain personal decisions, and each person may exercise his right as he chooses. But there is no guarantee of any outcome it is only a right to the choice of action. This entirely process-oriented view of liberty is, in fact, an alternative way of thinking about rights. One source of complexity relates to the problem of interdependence: a persons right to do something may be seen as conditional on some other things happening or not happening. The permissible strategies must be defined in relation to the strategy choices of others. Social choice formulations can deal with such interdependence easily enough since the rights are characterized with explicit reference to outcomes. To have similar sensitivity, the process-oriented understanding of liberty has tended to incorporate

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 39
the game-theoretic idea of game forms. In the game-form formulation, each person has a set of permissible acts or strategies, from which each can choose one. The outcome depends on the choices of acts, or strategies, by everyone. The requirements of liberty are specified in terms of restrictions on permissible choices of acts or strategies (what we can do), but not in terms of acceptable outcomes (what we get). However, liberty and freedom are not concerned only with the respective actions, but also with what emanates from those choices taken together. The question of interdependence in characterizing liberty is particularly important for taking note of what may be called invasive actions. Ex. Consider a non-smokers right not to have smoke blown in her face. This is, of course, a right to an outcome, and no understanding of liberty can be adequate if it remains entirely detached from the outcomes that emerge. o The game-form formulations have to be worked backwards by moving from acceptable outcomes to the combinations of strategies that would yield one of those outcomes. So the game-form formulations have to get at this problem indirectly. Rather than rejecting a possibility in which the outcome is that smoke is blown in my face, the procedural requirement takes the form of restrictions on strategy choice. We can try out the effectiveness, respectively, of: _ prohibiting smoking if others object, banning smoking in the presence of others, or _ forbidding smoking in public places no matter whether others are present or not (so that others do not have to stay away). We move increasingly to more and more exacting demands on smokers if the less restrictive constraints do not bring about the outcome needed for the realization of the liberty to avoid passive smoking. We do, of course, choose between different game forms here, but the choice of game forms is guided by its effectiveness in bringing about the social realization that is aimed at for the sake of liberty. There is no doubt that game forms can be characterized in a way that they can take note of interdependence and protect from the invasive actions of others. The characterization of permissible game forms has to be worked out directly or indirectly in the light of the outcomes emerging from the combination of different peoples strategies. If the driving force behind the choice of game forms is the judgement that smoking is inadmissible if it leads to passive smoking of unwilling victims, or their having to move away in order to avoid passive smoking, then the game-form choices are indeed parasitic on the focus of attention of social choice theory, namely the nature of the social realizations (or comprehensive outcomes) that emerge. We have to consider both the freedom of action and the nature of the consequences and outcomes to have an adequate understanding of liberty.

The upshot of this discussion is that both equality and liberty must be seen as having several dimensions within their spacious contents. We have reason to avoid the adoption of some narrow and unifocal view of equality or of liberty, ignoring all other concerns that these broad values demand. This plurality has to be a part of a theory of justice, which must be alive to several different considerations that each of these grand ideas liberty and equality invokes.

15 Democracy as Public Reason - UY


Note: This is an excerpt of the chapter. Basically, this chapter tells us that democracy as public discussion and not just mere ballots and election is not constrained to the West. Sen is saying that democracy as public discussion has a global origin. He also tells us that the Middle East is not an exception despite the contemporary view that the region is hostile to democracy. He also tells us that press and media have an important role in the advancement of public reasoning. Are we misleading ourselves in assuming that the experience of democracy is not confined to the West and can be found elsewhere? The belief that democracy has not flourished anywhere in the world other than in the West is widely held and often expressed. And it is also used to explain contemporary events. o Blame for the immense difficulties and problems faced in post-intervention

Iraq (attributed to some imagined difficulty that sees democracy and public reasoning as being unsuitable for the cultures and traditions of nonWestern countries like Iraq) There is an oddly confused dichotomy between those who want to impose democracy on countries in the non-Western world and those who are opposed to such imposition. o But the entire language of imposition used by both sides is extraordinarily inappropriate since it makes the implicit assumption that democracy belongs exclusively to the West, taking it to be a quintessentially Western idea which has originated and flourished only in the West In understanding the roots of democracy in the world, we have to take an interest in the history of peoples participation and public reasoning in different parts of the world. We

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 40
have to look beyond thinking of democracy only in terms of European and American evolution. We would fail to understand the pervasive demands of participatory living if we take democracy to be a kind of a specialized cultural product of the West. But we have to accept that the institutional structure of the contemporary practice of democracy is a major Western achievement. Democracy in its elaborate institutional form may be quite new in the worldits practice is hardly more than a couple of centuries old and yet, as Tocqueville remarked, it gives expression to a tendency in social living that has a much longer a more widespread history. Despite the general transformation in the conceptual understanding of democracy in political philosophy, the history of democracy is often recounted, even now, in rather narrowly organizational terms, focusing particularly on the procedure of balloting and elections. o Ballots do have a very important role even for the expression but they are not the only thing that matters, and they can be seen as one part of the way public reason operates in a democratic society. o Balloting alone can be thoroughly inadequate on its own. The difficulty lies not just in the political and punitive pressure that is brought to bear on voters in the balloting itself, but in the way expressions of public views are thwarted by censorship, informational exclusion and a climate of fear, along with the suppression of political opposition and the independence of the media, and the absence of basic civil rights and political liberties. Many dictators in the world have achieved gigantic electoral victories even without any overt coercion in the process of voting, mainly through suppressing public discussion and freedom of information, and through generating a climate of apprehension and anxiety.

The Content of Democracy It should be clear how central the role of public reasoning is for the understanding of justice. In contemporary philosophy, the view that democracy is best seen as government by discussion has gained widespread support. o o Older and more formal view of democracy: characterizes it mainly in terms of elections and ballots Contemporary political philosophy: the understanding of democracy has broadened vastly, so that democracy is no longer seen just in terms of the demands of public balloting, but much more capaciously, in terms of what John Rawls calls the exercise of public reason.

In his Theory of Justice, Rawls put this focus upfront: The definitive idea for deliberative democracy is the idea of deliberation itself. When citizens deliberate, they exchange views and debate their supporting reasons concerning public political questions. There are many differences in the distinct ways in which the role of public reasoning in politics and discursive ethics can be viewed. However, the main thesis that I am trying to explore here is not threatened by the existence of these differences. What is more important to note is that the totality of these new contributions has helped to bring about the general recognition that the central issues in a broader understanding of democracy are political participation, dialogue and public interaction. If the demands of justice can be assessed only with the help of public reasoning, and if public reasoning is constitutively related to the idea of democracy, then there is an intimate connections between justice and democracy, with shared discursive features. However, the idea of seeing democracy as government by discussion, which is so widely accepted in political philosophy today is sometimes in tension with contemporary discussions on democracy and its role in older and more rigidly organizational-terms.

The Limited Tradition of Democracy? Are we not trying in this exercise to focus on a purely Western feature of political organization as a general approach to fairness and justice in the world? If public reasoning is so critically important for the practice of justice, can we even think about justice in the world at large when the art of public reasoning as a part of democracy seems to be according to common belief, so quintessentially Western and locationally confined? The belief that democracy is basically a Western notion with European and American origins is a widespread one, and it does have some apparently plausibility, despite its being ultimately a wrong and superficial diagnosis. It is important to examine whether the tradition of democracy, either in its largely organizational interpretation in terms of ballots and election, or more generally as government by discussion, is quintessentially Western or not. When democracy is seen in the broader perspective of public reasoning, going well

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 41
beyond the specific institutional features that have emerged particularly strong in Europe and America over the last few centuries, we have to reassess the intellectual history of participatory governance in different countries in many parts of the worldnot just those in Europe and North America. The Global Origins of Democracy Ancient Greece contributed to the form and the understanding of the content of democracy. o It is important to understand that even the success of Athenian democracy turned on the climate of open public discussion, rather than just balloting, and while balloting began in Greece, the tradition of public discussion has had a much more widespread history. Even as far as balloting is concerned, the tendency to seek backing for a culturally segregationist view of the origins of elections in Europe calls for some further examination. o First, there is an elementary difficulty in trying to define civilizations not in terms of the exact history of ideas and actions but in terms of broad regionality, for instance, being European or Western, with a grossly aggregative attribution. o The second problem relates to what actually followed the early Greek experience of balloting. While Athens certainly was the pioneer in getting balloting started, many Asian regions used balloting in the centuries that followed, largely under Greek influence. There is no evidence that the Greek experience in electoral governance had much immediate impact in the countries to the west of Greece and Rome. In contrast, some of the cities in Asia incorporated elements of democracy in municipal governance in the centuries following the flowering of Athenian democracy. The practice of elections has had a considerable history in non-Western societies, but it is the broader view of democracy in terms of public reasoning that makes it abundantly clear that the cultural critique of democracy as a purely regional phenomenon fails altogether. While Athens has an excellent record in public discussion, open deliberation also flourished in several other ancient civilizations. The importance of public discussion is evident in other civilizations. E.g. India and Japan It is not surprising that in the fight for democracy led by visionary and fearless political leaders across the world, an awareness of local as well as world history has played an importantly constructive part. Is the Middle East an Exception? In re-examining the historical background of democratic features in the past, we also have to reassess the history of the Middle East, since there is an often-articulated belief that this block of countries has always been hostile to democracy. That constantly repeated conviction is exasperating for fighters for democracy in the Arab world, but as a piece of historical generalization it is basically nonsense. It is true that democracy as an institutional system has not been prominent in the past of the Middle East, but institutional democracy is in fact a very new phenomenon in most parts of the world. If we look instead for public reasoning and tolerance of different points of view, in line with the broader understanding of democracy that I have been discussing, then the Middle East does have quite a distinguished past. Middle Eastern history and the history of Muslim people also include a great many accounts of public discussion and political participation through dialogues. The present-day problems of the Middle East and what is called, somewhat oversimply, the Muslim world, may well be immense, but a probing assessment of the causation of these problems requires a fuller understanding of the nature and dynamics of identity politics. This calls for the recognition of the multiple affiliations that people have other than that of their religion, and the fact that these loyalties can vary from secular priorities to political interest in exploiting religious differences. The illusion of an inescapably non-democratic destiny of the Middle East is both confused and very seriously misleadingperniciously soas a way of thinking about either world politics or global justice today.

The Role of the Press and the Media The thesis that democracy is a Western intellectual inheritance derived from a long and unique past (unmatched anywhere else in the world) does not, therefore, work. One of the central issues to consider for the advancement of public reasoning in the world is support for a free and independent press, which is often conspicuous by its absencea situation that can certainly be reversed. An unrestrained and healthy media is important for several different reasons, and it is useful to separate out the distinct contributions it can make. 1. The first connection concerns the direct contribution of free speech in general and

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 42
of press freedom in particular to the quality of our lives. The absence of a free media and the suppression of peoples ability to communicate with each other have the effect of directly reducing the quality of human life, even if the authoritarian country that imposes such suppression happens to be very rich in terms of gross national product. Second, the press has a major informational role in disseminating knowledge and allowing critical scrutiny. The informational function of the press relates not only to specialized reporting but also to keeping people generally informed about what is going on where. Third, media freedom has an important protective function in giving voice to the neglected and the disadvantage, which can greatly contribute to human security. Fourth, informed and unregimented formation of values requires openness of communication and argument. The freedom of the press is crucial to this process. Indeed, reasoned value formation is an interactive process, and the press has a major role in making these interactions possible. 5. Finally a well-functioning media can play a critically important role in facilitating public reasoning in general, the importance of which for the pursuit of justice has been a recurrent theme in this work. It is not hard to see why a free, energetic and efficient media can facilitate the needed discursive process significantly. The many sided relevance of the media connection also brings out the way institutional modification can change the practice of public reason. The immediacy and strength of public reasoning depends not only on historically inherited traditions and beliefs, but also on the opportunities for discussion and interactions that the institutions and practices provide. The allegedly age-old and unshiftable cultural parameters that are far too often invoked to explain and even justify the deficiencies in public discussion in a particular country, very often do a much worse job in providing a robust explanation that can be obtained from a fuller understanding of the working of modern authoritarianismthrough censorship, regulation of the press, suppression of dissent, banning of opposition parties and the incarceration of dissidents.

2.

3.

4.

16 The Practice of Democracy - ALAGBAN


India as Illustration
The Bengal famine of 1943 was made viable not only by the lack of democracy in colonial India, but also by severe restrictions on reporting and criticism imposed on the Indian press and the voluntary practice of silence on the famine that he British-owned media chose tofolow. Government policy exacerbated the famine as there was no official famine relief. Policies were based on the idea that there was n particular decline in food output in Bengal at that time. The theory of famine was disastrously mistaken. New Delhi was unable to notice that so many thousands were actually dying on the streets everyday. A democratic system with public criticism and parliamentary pressure would not have allowed the officials to think the way they did. Famine Prevention and Public Reasoning Previous chapter: No major famine has ever occurred in a functioning democracy with regular elections, opposition parties, basic freedom of speech and a relatively free media. This has become fairly wide accepted. This is a simple but rather important illustration of the most elementary aspect of the protective power of political liberty. The prevalence of famines ended abruptly with the establishment of a democracy after independence in the history of British Indian Empire. The history of famines has had a peculiarly close connection with authoritarian rules, for example with colonialism, one-party states and military dictatorships. The direct penalties of a famine are borne only by the suffering public and not by the ruling government. HOWEVER, when a government is accountable to the public, and when there is free news-reporting and uncensored public criticism, then the government too has an excellent incentive to do its best to eradicate famines. Two specific issues: 1) The proportion of the population affected or threatened by a famine tends to be very small. What makes a famine such a political disaster for a ruling government is the reach of public reasoning, which moves and energizes a very large proportion of the general public to protest and shout about the uncaring government and to try to bring it down. 2) The second point concerns the informational role of democracy which goes beyond its function. In China, the lack of a free system of news distribution ultimately misled the government itself. Chairman Mao interestingly identified one particular role of democracy: Without democracy, you have no understanding of what is happening down below; the general situation will be unclear; you will be unable to collect sufficient opinions from all sides; there can be no communication between top

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 43
and bottom; top-level organs of leadership will depend on one-sided and incorrect material to decide issues, thus you will find it difficult to avoid being subjectivist; it will be impossible to achieve unity of understanding and unity of action, and impossible to achieve true centralism. Maos defense of democracy is focused exclusively on the informational side. famines belongs to democracys many-sided contributions in advancing human security. India has, without doubt, benefited from the protective role of democracy in giving the rulers excellent political incentive to act supportively when natural disasters threaten. However, the practice and reach of democracy can be quite imperfect despite the achievements that are undoubtedly present. Democracy gives an opportunity to the opposition to press for policy change even when the problem is chronic and has had a long history, rather than being acute and sudden, as in the case of famines. Democracy and Policy Choice Most champions of democracy have been rather reticent in suggesting that democracy would itself promote development and enhancement of social welfare. The theories of the practical split often came from East Asian countries. The observation of a handful of such examples led rapidly to something of a general theory: democracies do quite badly in facilitating development, compared with what authoritarian regimes can achieve. The assessment of development cannot be divorced from the lives that people can lead and the real freedom that they enjoy. Development can scarcely be seen merely in terms of enhancement of inanimate objects of convenience. Their value must depend on what they do to the lives and freedom of the people involved, which must be central to the idea of development. If development is understood in a broader way, with a focus on human lives, then it becomes immediately clear that the relation between development and democracy has to be seen partly in terms of their constitutive connection, rather than only through their external links. Political liberties and democratic rights are among the constituent components of development. We must also subject democracy to consequential analysis. We must be concerned, for example, with economic poverty, economic growth, public revenue. Public revenue creates an opportunity that the government can seize to make the process of economic expansion more equitably shared. Fuller cross-country comparisons have not provided any empirical support for the belief that democracy is inimical to economic growth. Indeed, the evidence is overwhelming that growth is helped by the supportiveness of a friendly economic climate rather than by the fierceness of a ruthless political system. Human Security and Political Power Attention must be paid to the extensive evidence that democracy and political and civil rights tend to enhance freedoms of other kinds through giving a voice, at least in many circumstances, to the deprived and the vulnerable. Democracys success in preventing The utilization of democratic institutions is certainly not independent of the nature of social conditions. It is hard to escape the general conclusion that economic performance, social opportunity, political voice and public reasoning are all deeply interrelated. India still has a long way to go in removing inequalities in the position of women, but the increasing political involvement in the social role of women has been an important and constructive development in democratic practice in India. In general, possibilities of public agitation on issues of social inequality and deprivation are now beginning to be more utilized than before, even though engagement on these issues was eclipsed for several years because of the sectarian politics that diverted attention from these concerns. Democratic freedom can certainly be used to enhance social justice and a better and fairer politics. The process, however, is not automatic and requires activism on the part of politically engaged citizens. Minority Rights and Inclusive Priorities The recognition that democracy has to be concerned both with majority rule and the rights of minorities is one of the most difficult issues that democracy has to tackle and is not a new idea even though in the organization context, democracy is frequently seen entirely in terms of balloting and majority rule. A broader understanding of democracy can accommodate the importance of minority rights without ignoring majority votes as part of the total structure of democracy. There remains, however, the problem that a ruthless majority that has no compunction in eliminating minority rights would tend to make the society face a hard choice between honouring majority rule and guaranteeing minority rights. The issues involved also apply to the role of democracy in preventing sectarian violence. Democracy prevents famines because the plight the plight of the minority is

Democracy and Development

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 44
politicized by public discussion to generate a huge majority for famine prevention. The role of democracy in preventing community-based violence depends on the ability of inclusive and interactive political processes to subdue the poisonous fanaticism of divisive communal thinking. The effect of sectarian demagoguery can be overcome only through the championing of broader values that go across divisive barriers. The recognition of the multiple identities of each person, of which the religious identity is only one, is crucially important in this respect. Democratic politics allows the opportunity to discuss these non-sectarian affiliations and their rival claims over religious divisions. The practice of democracy can certainly assist in bringing out a greater recognition of the plural identities of human beings.

And yet communal distinctions, like racial differences, remain open to exploitation by those who want to cultivate discontent and instigate violence, unless the bonds established by national democracies serve as an effective safeguard against this. There is no automatic guarantee of success by the mere existence of democratic institutions. Here an active and energetic media can play an extremely important part. The success of democracy depends inescapably on our actual behavior patterns and the working of political and social interactions. The working of democratic institutions depends on the activities of human agents in utilizing opportunities for reasonable realization.

17 Human Rights and Global Imperatives - BATOCABE


Does human right (may hereafter be referred to as HR) exists? Sen, states a dichotomy on the existence of such rights: 1) Human Rights exists As shown in the American declaration of independence, French declaration of the rights of man. The belief is that Human Rights should change the world not used to interpret it

1) Content it is the subject of the ethical assertion that is being made through the declaration of human right. To answer briefly (on the basis of what is theorized and what is practically invoked), the ethical assertion is about the critical importance of certain freedoms (like the freedom from torture) and correspondingly about the need to accept some social obligations to promote or safeguard these freedoms. 2) Viability (of the ethical claims that are involved in the declaration of human rights) there is an impliocit presumption in making pronouncements on human rights that the underlying ethical claims will survive open and informed scrutiny. Viability in impartial reasoning is seen as central to the vindication of human rights. Ethical assertions of human rights is not a legal guarantee (ex. American and French declarations of rights still needs implementing laws). THUS there is a need and focus on fresh legislation. The framers of the universal Declaration of the Rights of Man (UN) was intended to be a template for new laws that would be enacted to legalize HR across the world. HR can easily be asserted just like other proclamations (happiness is important, liberty must be preserved, etc) but viability is important as to how to implement the ideas of HR

2) Intellectual Scepticism Led by Jeremy Benthan, Human Rights is nonsense (nothing more than bawling on paper) *Nevertheless, conceptual doubts about the idea of human rights must be addressed and its intellectual basis clarified, if it is to command reasoned and sustained loyalty WHAT ARE HUMAN RIGHTS? Are there really such things? The existence of human rights is obviously not like the existence of Big Ben in the middle of London. Nor is it like the existence of a legislated law in the statute book. Proclamation of human rights, even though stated in the form of recognizing the existence of things that are called human rights, are really strong ethical pronouncements as what should be done. ACTION IS REQUIRED TO REALIZE HUMAN RIGHTS 2 issues: CONTENT and VIABILITY

ETHICS AND LAW As provided above assertion of HR can be compared with other ethical proclamations

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 45
Bentham compared (1) declaration of HR and (2) actually legislated rights and found that (1) lacks legal standing as compared to (2). Bentham simply postulated that for a claim to count as a right it must have legal force and any other term rights is simply mistaken. Sen COUNTERS by saying that the proper approach is between a utility based ethics which sees fundamental ethical importance in utilities but none in freedoms and liberties and a human rights ethics that makes room for basic importance of rights seen in terms of freedoms and corresponding obligations. An ethical understanding of HR clearly goes against seeing them as legal demands and also against taking them to be as in Benthams view, legal connection Sen agrees with Hubert Hart that there can be little doubt that the idea of moral rights can serve, and has often served in practice, as the basis of new legislation. Whether or not the language of human rights is employed, claims that certain freedom should be respected, and if possible guaranteed, have been the basis of powerful and effective political agitation in the past, for example in the suffragist movement that demanded voting rights for women, ultimately with success. IN FACT, many actual laws have been enacted that gives legal force to certain rights seen as basic HR. BEYOND THE LEGISLATIVE ROUTE The ways and means of advancing ethics of HR need not be confined in making laws. An ex. is NGO work (Amnesty International, Red Cross, Medicins sans Frontieres, etc.) In fact there are times when HR should not be made into law (see par. 2 p. 265 for a cogent example) because such thinking contrary to basic HR must not be penalized but through change in paradigm that is brought by media, debate and public discussion. HR are ethical claims constitutively linked with the importance of human freedom. Human rights can serve as the motivation for many activities, from legisltation and implementation of laws to enabling help from other people and public agitation against HR violations. The different activities can contribute to advancing the importance of human freedoms. RIGHTS AS FREEDOMS The importance of freedoms provides a foundational reason not only for affirming our own rights and liberties but also for taking an interest in the freedoms and rights of others. For freedom to be included as part of HR, it clearly must be important enough to provide reasons for others to pay serious attention to it. There must be threshold conditions of relevance, including importance of the freedom and the possibility of influencing its realization, for it to possibly figure w/in the spectrum of HR. See Rehanna example at p. 367. Freedoms #3, and 4 may not be socially relevant and/or abstract while #5 is open to scrutiny and assessment, depending much on the characterization of the necessary contingencies, in particular whether society or the state can help eliminate these fears in a way that an individual acting separately cannot, no matter how rational he may be. OPPORTUNITY AND PROCESS ASPECTS (it may be worthwhile to see Ch. 11) Take for example person A. She wants to go out then she is told by someone else that she MUST go out. In any instance, wether forced or not A would want to go out and will go out anyway. If she was forced, there is a violation of the process aspect because it was forced. Also there is a violation of the opportunity aspect as it lessened her opportunity (she may want to stay home anyway, but now the only option is to go out) Both processes and opportunities can figure in HR. For the opportunity aspect of freedom, the idea of capability as would typically be a good way of formalizing freedoms, but issues realted to the process aspect of freedoms demand that we go beyond seeing freedoms only in terms of capabilities. PERFECT AND IMPERFECT OBLIGATIONS Since violation or non realization of the freedoms underlying significant rights are bad things to happen (or bad social realizations), even others who are not themselves causing the violation, but who are in a position to help, have to consider what they do in this case. HOWEVER, the move from a reason for action (to help another), which is straightforward in a consequence-sensitive ethical system, to an actual duty to undertake that action is neither simple, nor sensibly covered under just 1 straightforward formula. The recognition of HR is not an insistence that everyone rises to help prevent any violation of any HR no matter where it occurs. It is rather, an acknowledgment that if 1 is in a position to do something effective in preventing the violation of such right, then one does have a good reason to do just that a reason that must be taken into account in deciding what should be done.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 46
Ex. Kitty Genovese Case (see p 374) Woman was being assaulted violation of right not to be harmed Man by assaulting Kitty violates duty not to attack and murder (a breach of perfect obligation) Bystanders duty to help (an imperfect obligation) was violated when they did not help Imperfect obligations, along with the inescapable ambiguities involved in that idea, can be avoided if the rest of humanity other than those directly involved are exempted from any responsibility to try to do what they can to reasonably help. THE SOLUTION (which is different in the legal domain as in the ethical domain): make laws that make helping a perfect obligation (ex. would be RPC Art 275) FREEDOM AND INTEREST Freedom may be different from interest (Ex. Prude and Lewd from past chapter and airplane window case) In the Airplane scenario person A who was in the window was asked by person B to pull down the shade so as to play computer. It is in the interest of B to stop playing computer but A would impinge on Bs freedom if A does not accede to the request. If interest-based understanding of rights were to be accepted, then the status of freedom as the basis of the human right to demonstrate would surely be undermined. If on the other hand, freedom are accepted as important because they give the person involved the liberty to choose and lead his life in terms of his own priorities (whether interest-oriented or not), then the interest based perspective of HR must ultimately be inadequate. THE PLAUSIBILTYOF ECONOMIC AND SOCIAL RIGHTS Economic and Social Rights (sometimes called welfare rights) - seen by their proponents as important 2nd generational rights. They have been added relatively recently and expand the domain of HR. The global recognition of endemic poverty and systematic inequity as serious HR concerns has put pressure on individual countries for internal democratic reforms and made vivid the need for just and effective international institution directives. The 2nd gen rights have become significant in influencing the agenda of institutional reforms for the fulfillment of imperfect global obligations, which have been explicitly but more implicitly acknowledged. The inclusion of 2nd gen rights make it possible to integrate ethical issues underlying general ideas of global devt w/ the demands of deliberative democracy, both of which connect w/ HR and quite often w/ an understanding of the importance of advancing human capabilities. 2 types of reproach to 2nd gen rights

1)

Institutionalization Critique aimed particularly at economic and social rights, relates to the belief that real rights must involve an exact correspondence with precisely formulated correlate duties. Such a correspondence exists only when the right is institutionalized. Feasibility Critique proceeds from the argument that even with the best effort it may not be feasible to realize many of the alleged and economic rights of all

2)

SCRUTINY VIABILTY AND USE The viability of ethical claims in the form of declaration of human rights is ultimately dependent on the presumption of the claims survivability in unobstructed discussion. Force of HR would be undermined if it cannot survive public scrutiny. Uncurbed critical scrutiny is essential for dismissal as well as for justification of violations for perceived HR violations and HR itself

18 Justice and the World - DEL CASTILLO


INTRODUCTION (of the Chapter) [p. 388] Main Point of this part: Open-minded engagement in public reasoning is quite central to the pursuit of justice. (p. 390) Contrary argument cannot be sensibly dismissed without serious engagement There is a requirement for public reasoning.

geared only to reduce suffering: at least onethird of the people must die They denounce social agitators who incite discontent of with the established order (the present state) by telling people that the government can help them inflammation of the minds of the suffering humanity

Illustration: Drought in the English Summer James Mill and David Ricardo: subscribe to a simple version of utilitarian justice

General approach of this book is inimical to such reproach. The reasons for this divergence:

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 47
1. What tends to inflame the minds of suffering humanity is an immediate interest to both policymaking and diagnosis of injustice Sense of injustice must be examined We cannot be sure whether it is erroneous or well-founded without some investigation Administration of justice can be more effective if judges are seen to be doing a good job. If judgment inspires confidence and general endorsement, then very likely it can be more easily implemented If others cannot see that a judgment is just, not only is its implementability adversely affected, but also its soundness would be deeply problematic There is a clear connection between the objectivity of a judgment and its ability to withstand public scrutiny

2.

Injustice relate to social divisions (i.e. class, race, etc.) or other established barriers makes it difficult to objectively examine what is happening and what could have happened this contrast is central to the advancement of justice Approach to justice, involved in diagnosing injustice: the outrage or inflamed minds is a prelude to scrutiny The arguments of the instigators did not deserve prompt dismissal In encouraging people to believe in legislation, they were more right about the possibility of social relief through effective legislation Ex: in a famine, those who lose out to the food battle can be given more market command through income-generation measures

Hence, in the pursuit of justice, open-minded engagement in public reasoning is central. WRATH AND REASONING [p. 390] Resistance to injustice draws on both indignation and argument Frustration and ire can help motivate us. Ultimately, we have to rely on reasoned scrutiny in order to understand the basis of those complaints and what can be done to address it Dual function of indignation and reasoning: Expression of anger and exasperation: Angry rhetoric must be followed by reasoned arguments to be considered. The role and reach of reason are not undermined by the indignation that leads us to an investigation of the basis of the inequities Pure expressions of discontent can make contributions to public reasoning if it is followed by investigation. Appeal to reason in public is an important approach of this book When we try to identify how justice can be advanced There is a basic need for public reasoning involves arguments from divergent perspectives Engagement with contrary arguments does not imply that we can settle conflicting reasons in all cases Complete resolution is neither a requirement of a persons rationality or condition of social choice, including a reason based theory of justice. JUSTICE BEING SEEN TO BE DONE [p. 392] Agreement to do something helps the undertaking of that something Justice shot not only be done, but also seen to be done

PLURALITY OF REASONS [p. 394] Importance of public reasoning and the need to accept the plurality of reasons Adam Smith: complained of the tendency of theorists to look for a single homogenous virtue in which all the values could be explained o Some schools of thought insist that all distinct values be reduced to a single source of importance o Those who are insistent that human beings cannot cope with determining what to do unless all balues somehow are reduced to no more than one are evidently comfortable with counting (is it more or is it less?) but not with judgment (is this more important than the other?). Plurality of reasons that a theory of justice has to accommodate relates not only to objects of value that the theory recognizes as significant but also to the type of concerns for which the theory may make room. Judgment about justice has to accommodate different kinds of reason and evaluative concerns o Recognition that we can always prioritize relative importance of competing considerations does not indicate that it can always be completely ordered o Reasoned conclusions can easily take the form of partial rankings Impartial Reasoning and Partial Orderings (p. 396) Plurality of reasons can sometimes pose no problem for a definitive decision, whereas in other cases it can pose a serious challenge. (Ex: three children with flute) There can be a congruence of different reasons in many particular cases. The idea of justice includes cases of different types, with easy resolution in some instances and very hard decisional problems in others. The competing criteria will yield different rankings of alternatives, with some shared elements and some divergent ones. The intersection (shared elements) of the diverse orderings generated by the different priorities will yield a partial ordering that ranks some alternatives against each other, while failing altogether to rank other pairs of alternatives.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 48
The commonality of the shared partial ranking can then be seen as the definitive outcome of that broad theory. The basic issue is the need to recognize that a complete theory of justice may well yield an incomplete ranking of alternative courses of decision and that an agreed partial ranking will speak unambiguously in some cases and hold its silence in others. The elements of congruence of surviving impartial reasoning form the basis of a partial ordering underlying the claims of manifest enhancement of justice The Reach of Partial Resolutions (p. 399) To be useful, a social ranking must have some substantive coverage, but need not be complete. A theory of justice has to rely fundamentally on partial orderings based on the intersection (commonality) of distinct rankings drawing on different reasons of justice that can all survive the scrutiny of public reasoning. On the other hand, there are a great many choices in which a partial ordering with specific gaps could give us a great deal of guidance. (Ex: p. 399 last paragraph) Reason to scrutinize and critically examine the arguments based on considerations of justice see how far we can extend the partial ordering that emanates from that perspective. no reason to turn down the help we get from the partial ordering that we end up with, even if it leaves some choices beyond reach. Comparative Framework (p. 400) Debates about justice must be about comparisons if they are going to relate about practicalities. Identification of the transcendental requirements of a fully just society would have many other demands on how to idealize an actual society whether or not such changes could actually be implemented. Justice and Open Impartiality (p.402) There are two principal grounds for requiring that the encounter of public reasoning about justice should go beyond the boundaries of a state or a region: (1) Interdependence of interest (think Globalization Ex: p. 402 last paragraph) The interdependences also include the impact of a sense of injustice in one country on lives and freedom in others. Injustice anywhere is a threat to justice everywhere, Martin Luther King Second ground discussed in the following section. Non-Parochialism as a Requirement of Justice (2) Avoidance of the trap of parochialism Possible danger of ignoring or neglecting many challenging counter-arguments that might not have come up in local political debates, or been accommodated in the discourses confined to the local culture, but which are eminently worth considering, in an impartial perspective Adam Smith: in order to resist parochialism o Impartial Spectator:what would a particular practice or procedure look like to a disinterested person from far or near o Smith was particularly concerned about avoiding the grip of parochialism in jurisprudence and moral and political reasoning o Adam Smiths insistence that we must inter alia view our sentiments from a certain distance from us is thus motivated by the objective of scrutinizing not only the influence of vested interests, but also the captivating hold of entrenched traditions and customs. o Example of current debates: Death sentence for crimes committed in a persons juvenile years Distant judgments are particularly important to consider and scrutinize in order to avoid being trapped in local or national parochialism o Scrutiny from a distance can be very useful in order to arrive at grounded but open-minded judgments, taking note of questions that consideration of non-local perspectives can help to generate Despite the undoubted importance of local knowledge, global knowledge has some value too, and can contribute to the debates on local values and practices. o It does not require us to be respectful of every argument that may come from abroad. o Willingness to consider an argument proposed elsewhere is very far from a predisposition to accept all such proposals. Justice, Democracy and Global Reasoning (p.408) Giving serious consideration to distinct and contrary arguments and analyses coming from different

Justice-enhancing changes or reforms demand comparative assessments, not simply an immaculate identification of the just society (or the just institutions) An approach to justice can be both entirely acceptable in theory and eminently useable in practice The approach can include the understanding that different reasonable and impartial judges could sensibly differ on the identification of a transcendental alternative.

It would be a mistake to expect that every decisional problem for which the idea of justice \would be resolved through reasoned scrutiny.

It would also be a mistake to assume that since not all disputes can be resolved through critical scrutiny, we do not have secure enough grounds to use the idea of justice with conclusive judgment. We go as far as we reasonably can.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 49
quarters is a participatory process that has much in common with the working of democracy through public reasoning. The two are not the same: democracy is concerned with a political assessment leading us to government by discussion Rawls focused on institutions as the subject matter of his principles of justice. o The social realizations are assumed to be determined by a combination of just institutions and fully compliant behavior by all to make a predictable transition from institutions to states of affairs. In a world where those extremely demanding behavioral assumptions do not hold, the institutional choices made will tend not to deliver the kind of society that would have strong claims to being seen as perfectly just.

undertaking non-self-centered and nonparochial scrutiny through paying attention to distant perspectives may be largely motivated by the demands of objectivity

Implications of these recognitions are for the demands of global justice and also for the nature and requirements of global democracy: - For the foreseeable future, it is really impossible to have a global state, and therefore a fortiori a global democratic state. Yet if democracy is seen in terms of public reasoning, then the practice of global democracy need not be put in indefinite cold storage. The plurality of sources enriches the reach of global democracy The distribution of the benefits of global relations depends not only on domestic policies, but also on a variety of international social arrangements Active public agitation, news commentary and open discussion are among the ways in which global democracy can be pursued, even without waiting for the global state The challenge today is the strengthening of this already functioning participatory process Social Contract versus Social Choice (p.410) Reliance of public reasoning is an important aspect of Sens approach. His argument is to replace transcendental institutionalism (mainstream approach to justice i.e. Rawls) by focusing questions of justice: first, on assessments of social realizations, that is, on what actually happens (rather than merely on the appraisal of institutions and arrangements) and second, on comparative issues of enhancement of justice (rather than trying to identify perfectly just arrangements). Sens Approach: influenced by tradition of SOCIAL CHOICE THEORY concentrates on making evaluative comparisons over distinct social realizations (social choice) rather than the discipline of reasoning about justice in terms of the idea of a social contract (duh, social contract) Limitations of Social Contract: directly concerned only with the identification of just institutions - transcendentalism

Differences and Commonality (p. 412) Commonality of the Theories of Justice (Social Choice and Contract): Directly concerned with peoples lives and capabilities, and the deprivation and suppression suffered The connections between the disparate theories of justice have to be firmly noted since, in the debates about different theories, the focus tends to be on differences rather than on similarities A shared commitment of theories of justice is to take these issues seriously and to see what they can do in terms of practical reasoning about justice and injustice in the world Distinct theories of justice may compete in finding the right use of that concern, but they share the significant feature of being involved in the same pursuit - The pursuit of a theory of justice has something to do with a similar question: what is it like to be a human being? Those distinctions remain, and my reason for asking what it is like to be a human being is different it relates to the feelings, concerns and mental abilities that we share as human beings. The general pursuit of justice might be hard to eradicate in human society, even though we can go about that pursuit in different ways There is no automatic settlement of differences between distinct theories, But it is comforting to think that not only do proponents of different theories of justice share a common pursuit, They also make use of common human features that figure in the reasoning underlying their respective approaches. these basic human abilities to understand, to sympathize, to argue people need not be inescapably doomed to isolated lives without communication and collaboration.

SAM HARRIS Introduction: The Moral Landscape - RAMIREZ


TAGS. Moral landscape, well-being, values, belief, bad life v. good life FOCUS. How moral truth can be understood in the context of science

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 50
Basically, Harris is saying that it is possible for people to believe and value the wrong things (and the wrong could be defined in objective terms). Science can thus increasingly inform our values. STARTING POINT. Most people think science cannot pose, much less answer, questions of morality. Current state of things which Harris wishes to address: (1) Science has nothing to do with what constitutes a good life -> Scientific community has been reluctant in taking a stand on moral issues. a. The purpose of scientific research has been largely to describe how human beings think and behave but not how we ought to think and behave. b. Science has appeared divorced, in principle, from answering the most important questions of human life. It is intellectually disreputable for a scientist to suggest his work offers some guidance as to how people should live. Psychologist Fodor says: Science is about facts, not norms; it might tell us how we are, but it couldnt tell us what is wrong with how we are. There couldnt be a science of human condition. (2) Humes is-ought gap -> The idea that facts about how the world is cannot tell us how we ought to behave -There is a perceived gulf between facts and values which influences a persons view on issues of social importance. Reason has its limitations because it is powerless in answering the most basic questions in human life. *Harris response: Culture is somewhat determinative of the gulf between facts and values. But cultural relativism (an idea embraced by a great number of influential progressives that all cultures are equally valid) is wrong. It would be a miracle if all societieshad [subdued certain aspects of human nature through social mechanisms and institutions] equally well. And yet the prevailing bias of cultural relativism assumes that such a miracle has occurred not just once, but always. -People who draw their worldview from religion believes moral truth exists but only because God has woven it into the very fabric of reality (religious conservatives/conservative dogmatism) *Harris response: Dogmatism is the enemy of any human conversation. -People who lack the faith think notions of good and bad are products of evolutionary processes; others imagine no objective answers to moral questions exists (secular liberals/liberal doubt, e.g. the scientific community) *Harris response: Our modern concerns about meaning and morality have flown the perch built by evolution. -Our view of good and bad, while constrained by biology, cannot be directly reduced to instinctual drives and evolutionary imperatives. -A scientific account of values is not the same as an evolutionary account. While possibilities of human experience must be realized in the brains that evolution has built for us, our brains were not designed with a view to our ultimate fulfillment. Our minds do not simply conform to the logic of natural selection (e.g. people who wear eyeglasses or uses sunscreen confesses a disinclination for the life his genes has made for him). While we have inherited a multitude of yearnings that probably helped our ancestors survive, much of our inner life is frankly incompatible with our finding of happiness in todays world. HARRIS ASSERTION. Human well-being entirely depends on events in the world and on states of the human brain. Therefore, we can objectively distinguish a bad life from a good life Bad Life v. Good Life -Premises: (a) some people have better lives than others (difference) (b) these differences relate, in some lawful and not entirely arbitrary way, to state of human brain and to states of the world (objective conditions) -There is a continuum of experience, a spectrum of suffering and happiness, that is accessible to us. And most of what we do in life is predicated on their being nothing more important than the difference between the bad life and the good life. Once we realize that there is a difference and that there are objective conditions that make such difference, then we effectively admit that there are right and wrong answers to questions of morality (i.e. what is right is the good life or those things which enhance or are conducive to our well-being; what is wrong is the bad life or those things which obstruct or destroy our well-being)

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 51
-Counterarguments: The difference doesnt exist (no difference) OR they are too variable, complex, or culturally idiosyncratic to admit of general value judgments (no objective conditions) -Assumption: Everyone prefers a good life. Those rare exceptions of people preferring the bad life (e.g. psychopaths) are cases which do not count. *Note: We say can legitimately say that some things like preference for a bad life can be disregarded if knowledge or expertise is to count at all (especially since those who dont see the good life as more preferable than the bad life has nothing to contribute to a discussion of well-being). More precisely put, just because we cant reach a moral consensus (bec. some few people disagree that the good life or one that enhances well-being is morally right) or that our definition of morality is not absolute, it doesnt mean that there is no moral truth. For instance, we can attribute disparities or presence of archaic/alternate moral code to ignorance (predicated on not knowing or pretending not to know) PARAMETER. (Harris is not claiming that) Harris is not What Harris is trying to say claiming that Every moral There simply must be answers controversy can be to moral questions, whether we resolved through know them or not. science. We will necessarily discover one right answer or a single best way for human beings to live. A universal conception of morality requires that we find moral principles that admit of no exceptions. Differences will remain but opinions will be largely constrained by facts. Because There are technical challenges involved (inability to gather relevant data), but moral questions can admit scientific answers (if only we had the technology) -Discrepant answers from different people translate differences in our brain, in the brain of others, and in the world at large -Differences in opinion on moral questions reveal the incompleteness of our knowledge Just because there could be exceptions to the notion of moral truth, it doesnt mean the idea of having one moral truth has to be abandoned altogether. -There will always be wrong answers; we are not obliged to respect a diversity of view indefinitely. -Mistaking no answers in practice with no answers in principle is a great source of moral confusion.

Existence of moral truth (i.e. the connection between how we think and behave and our wellbeing) does not mean we have to define morality in terms of unvarying precepts. BUT the fact that we can avoid a definition of morality in absolute terms does not suggest all competing answers are valid.

. DISCUSSION 1. Morality is an undeveloped branch of science. Science will eventually encompass lifes deepest questions. A science of human flourishing may seem a long way off, but to achieve it, we must first acknowledge that the intellectual terrain actually exists. 2. Science can determine human values, thus the scientific study of morality is a valid line of inquiry. - Human values and human knowledge cant be kept apart. The world of meaning and the world of measurement have to be reconciled. -But science and religion (being antithetical ways of thinking about the same reality) cant come to terms. *Goulds doomed notion of nonoverlapping magisteria (the idea that science and religion, properly construed, cannot be in conflict because they constitute different domains of expertise; and that problems only arise when they stray onto each others territories) is not true. Science and religion are in conflict, and cannot be otherwise, precisely because sciences discoveries of fact consistently erode, debunk and render foolish many of the longstanding teachings of religion. Harris says meaning, values, morality, and the good life must relate to facts about the well-being of conscious creatures (events of the world and states of human brain). Rational, open-ended honest inquiry has always been the true source of insight into such processes. Faith, if it is ever right about anything, is right by accident. -The relevant science is at its infancy. Development in this field is well underway. -We know that our emotions, social interactions, and moral institutions mutually influence one another. We grow attuned to our fellow human beings through these systems, creating culture in the process. Culture becomes a mechanism for further social, emotional and, and moral development. The human brain is the nexus of these influences. Cultural norms influence our thinking and behavior by altering the structure and function of our brains. -The divide between facts and values is illusory (a clear boundary between the two does not exist):

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 52
(i) whatever can be known about maximizing the well-being of conscious creatures (which is the only thing we can reasonably value) must at some point translate to facts about brains and their interaction with the world at large (ii) the very idea of objective knowledge (e.g. knowledge acquired through honest observation and reasoning) has values built into it (e.g. logical consistency, reliance on evidence, parsimony, etc.) (iii) beliefs about facts and beliefs about values seem to arise from similar processes at the level of the brain (it appears that we have a common system for judging truth and falsity in both domains) DEFINITIONS/CONCEPTS Term Definition/idea Moral A hypothetical space landscap representing all real and e potential outcomes whose peaks correspond to the heights of potential wellbeing and whose valleys represent the deepest possible suffering. Wellbeing Relevance to discussion 1. Different ways of thinking and behaving (e.g. different cultural practices, modes of government) will translate into movements across this landscape, and therefore into different degrees of human flourishing. 2. Where human beings are concerned, movements across the moral landscape can be analyzed upon states and capacities of the human brain. 1. Harris links well-being to morality. -Questions about value (about meaning, morality, and lifes larger purpose) are really questions about the well-being of human creatures. 2. He defines good as that which supports well being (things that maximize well being is good) -In this sense, there is a finite range of answers as to what constitutes good or what is morally right. -We can expect this space of possibilities (the moral landscape) to be illuminated by science. 3. He points out the concept of well-being resists precise definition, but it is indispensible. -Its meaning is likely to remain perpetually open to revision as we make progresses in science (i.e. changes in the world may mean that our current notion of well-being is arbitrary). But even as new frontiers await us, the difference between the heights in human fulfillment and depths of human misery is no less clear. -In short, there will always be a good life and a bad life even if the standard of well-being change 1. Values translate into facts that can be scientifically understood. -We can account for the ways in which culture defines us within the context of neuroscience and psychology. -The more we understand ourselves at the level of the brain, the more we will see that there are right and wrong answers to questions of human values. 2. When we talk about values, we are actually talking about an interdependent world of facts (facts about how thoughts and intentions arise in the human brain, facts about how mental states translate into behavior, facts about how behavior influences the world and the experience of conscious beings) -These facts will exhaust what is meant by good and evil. Just as there is no such thing as Christian physics or Muslim algebra, there is no such thing as Christian or Muslim morality. 1. Belief bridges the gap between facts and value. -We form beliefs about facts (and belief, in this sense, constitutes most of what we know about the world), e.g. through science, history, etc. -We form beliefs about values, e.g. judgments of morality, meaning, personal goals *These two beliefs (belief in facts, belief in values) share important an important feature they both make tacit claims about right and wrong (how we think and behave AND how we should think and behave)

Values

Values are the set of attitudes, choices, and behaviors that personally affect our well-being as well as that of other conscious minds.

Belief

The human brain is an engine of belief. Our minds continually consume, produce, and attempt to integrate ideas about ourselves and the world that purport to be true.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 53
-Factual and ethical beliefs are not simply expressions of preference, but to acceptance of propositions for legitimate reasons. -Thus there is an expectation that another person, similarly placed to use, should share our belief.

1 Moral Truth - GALURA


Science and Morality Many people believe that something in the last centuries of intellectual progress prevents us from speaking in terms of moral truth and therefore, from making cross-cultural moral judgments. The general argument is that science can help us understand what we should do and what we should want and therefore what other people should do and should want in order to live the best lives possible. There are right and wrong answers to moral questions, just as there are right and wrong answers to questions of physics. Concern for Well-Being Once we understand that a concern for wellbeing (defined as deeply and inclusively as possible) is the only intelligible basis for morality and values, then we will see that it is possible to have a science of morality WON we succeed in developing it. When we say that we are reasoning or speaking objectively, we usually mean that we are free of bias, and are open to counterarguments. This is making a claim about how we are thinking. As such, there is no impediment to our studying subjective facts objectively. The Truth and Defining Morality Truth has nothing to do with consensus. It cannot be the truth simply because most of the people agree that it is the truth. Consensus is merely a guide to discovering what is going on in the world. Its presence or absence in no way constrains what may or may not be true. In talking about the moral truth there must be facts concerning human and animal well-being which we can also be ignorant or mistaken. In both cases, science and rational thought in general is the tool we can use to uncover these facts. All notions of value will bear some relationship to the actual or potential experience of conscious beings, meaning either their wellbeing or the lack of it. All philosophical efforts to define morality, including the religion project, in terms of duty, fairness, justice draw upon some conception of well-being in the end. Our concepts of dead, health etc are always defined with reference to specific goals. Example: Health is defined with relation to a specific goal absence of or not suffering chronic pain. Intuitive Morality Everyone has an intuitive physics. However much of our intuitive physics is wrong. Only physicists have a deep understanding of the laws that govern the behaviour of matter in the universe. Just the same, everyone has an intuitive morality, but much of our intuitive morality is wrong. Only the genuine moral experts would have deeper understanding of the causes and conditions of human and animal well-being Good and Bad At the very least, we can agree that it is good to avoid behaving in a way as to produce the worst possible misery for everyone. Once we admit that the extremes of absolute misery and absolute flourishing are different and dependent on facts about the universe, then we have admitted that there are right and wrong answers to questions of morality. Adam and Eve How would two people living alone together on earth maximize their well-being? Surely it is not by smashing each other in the face with a large rock. There may be countless of ways for both of them to thrive. Just the same, there are also many ways for them not to thrive. There are always to sides to the equation, the right (promoting well-being) and the wrong (destroys well-being). Why then would the difference between right and wrong answers suddenly disappear once you add 6 billion more people in the picture? The moment we admit that we know something about human well-being scientifically, we must then admit that certain individuals or cultures can be absolutely wrong about it i.e. Taliban regime. Moral Blindness in the Name of Tolerance There are certain cultures which are less conducive to the promotion of well-being General thesis is: right or wrong is simple a matter of increasing or decreasing well-being.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 54
Moral Relativism Relativism claims that we should be tolerant of moral difference because no moral truth can supersede any other each culture, each society has it own set of moral norms. Moral relativism claims that moral truths exist only relative to a specific cultural framework. However, this claim seems to insist itself as true across all possible frameworks a selfcontradictory position. Moral relativism is merely an attempt to apologize for the misdeeds of western colonialism, ethnocentrism and racism. Other than this, it has no intellectual value to it. Moral Science In talking about a science of morality, the author does not refer to an evolutionary account of all the cognitive and emotional processes that govern what people do when they say they are being moral. What is being referred to is the totality of scientific facts that govern the range of conscious experiences that are possible for everyone else. To say that there are truths about morality and human values is simply to say that there are facts about our well-being that we can still discover. Even though such facts relate to the experience of conscious beings, they cannot be the mere invention of any culture or culture. As such, there are 3 concerns that should not be confused: We can explain why people follow certain patterns of though and behaviour in the name of morality. o We can think more clearly about the nature of moral truth and determine which patterns of thought and behaviour should be followed in the name of morality. o We can convince people who are committed to wrong and harmful patterns of behaviour and thought in the name of morality to end such patterns and thus live a better life. The moral landscape guarantees the fact that many people will have erroneous conceptions of morality, just as many people have flawed conceptions of physics. Some people would think that physics include practices like astrology, voodoo etc. Under the same vein, 57% of Americans believe that preventing homosexuals from marrying is a moral imperative. The fact that millions of people use the term morality as synonym for racism, sexism or other failures of insight and compassions does not mean that we merely accept their terminology until the end of time. The challenge is for us to begin speaking sensibly about right and wrong, and good and evil, given what we already know about the world.

2 Good and Evil - ARCILLA

Clearly, there are moral states and capacities that contribute to our general well-being as well as mental states and incapacities that diminish it. According to Harris, human cooperation has a great bearing on human well-being. Kin selection, reciprocal altruism, and sexual selection explain how we have evolved to become social selves willing to serve a common interest with others. Most of us are often absorbed by selfish desires, but when we reflect on what we should do, an angel of beneficence and impartiality seems to spread its wings within us. Genetic changes in the brain gave rise to social emotions, moral intuitions, and Language, which allowed for increasingly complex cooperative behavior that became the basis for cultural norms, laws, and social institutions which maintain the system of cooperation.

The moment one begins thinking about morality in terms of well-being, it becomes easier to discern a moral hierarchy across human societies Consequentialist starting point: all questions of value (right and wrong, good and evil, etc.) depend upon the possibility of experiencing such value. To say that an act is morally necessary, or evil, or blameless, is to make claims about its consequences in the lives of conscious creatures. Even within religion, consequences and conscious states remain the foundation of all values. Our growing understanding of the brain will have increasing relevance for any claims we make about how thoughts and actions affect the welfare of human beings. Can We Ever Be Right About Right and Wrong? Harris believes that Moral view A is truer than moral view B if A entails a more accurate understanding of the connections between human thoughts/intentions/behavior and human well-being. He

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 55
says moral judgment is mostly driven by moral intuitions of an emotional nature. Therefore, people are naturally inclined towards a mistaken belief in moral realism. Harris asks Do we really need to assume uniformity in peoples underlying moral outlooks for there to be right answers to moral questions? Harris suggests tolerating the supposed hopelessness of total uniformity in the moral sphere, because other areas of knowledge also lack this closure. The moment we accept that there are right and wrong answers to questions of human well-being, we must admit that many people are simply wrong about morality. Most scientists seem to believe that no matter how maladaptive or masochistic a persons moral commitments, it is impossible to say that he is ever mistaken about what constitutes a good life. Moral Paradox Is Being Good Just Too Difficult? One of the problems with consequentialism in practice is that we cannot always determine whether the effects of an action will be bad or good. One difficulty we face in determining the moral valence of an event is that it often seems impossible to determine whose well-being should most concern us. A science of morality could help in making decisions about which social policies to adopt. Even though there are difficulties in determining consequences and there are several peaks in the moral landscape (different situations that would increase well-being by the same level), there are certainly actions (e.g. terrorist bombings, demonizing homosexuals, veiling women, etc.) that will obviously NOT move humanity toward a peak on the moral landscape. It may be impossible to see two circumstances as morally equivalent, even while knowing that they are. Features of our subjectivity that have implications for morality: the endowment effect - Daniel Kahnemans words, a good is worth more when it is considered as something that could be lost or given up than when it is evaluated as a potential gain. People tend to view sins of commission more harshly than sins of omission. people tend to evaluate an experience based on its peak intensity (whether positive or negative) and the quality of its final moments. In psychology, this is known as the peak/end rule. Fairness and Hierarchy Among the rational challenges to consequentialism, the contractualism of John Rawls has been the most influential in recent decades. Rawls called Most people are not living in a way that maximizes their own well-being and the well-being of others. They find it difficult to choose the course of action that will lead to a better well-being. They all depend on the states of a persons mind, which is being studied by the field of neuroscience. Advances in neuroscience and pharmaceuticals may help us in living the better way to live. A fuller understanding of what moral life entails, however, would require a science of morality. Bewildered by Diversity Psychologist Jonathan Haidt wag-the-dog illusion: We believe that our own moral judgment (the dog) is driven by our own moral reasoning (the tail). The second illusion can be called the wag-the-otherdogstail illusion: In a moral argument, we expect the successful rebuttal of our opponents arguments to change our opponents minds. Such a belief is analogous to believing that forcing a dogs tail to wag by moving it with your hand should make the dog happy. Reasoning produces moral judgments less often than people think.Hhuman beings tend to make moral decisions on the basis of emotion, justify these decisions with post hoc reasoning, and stick to their guns even when their reasoning demonstrably fails. Scientists like Joshua Greene and Jonathan Haidt seem to think that the very existence of moral controversy nullifies the possibility of moral truth. In their opinion, all we can do is study what human beings do in the name of morality. Failure to convince the other party could lead each side to conclude that the other side must be closed minded or insincere. the novel starting point the original position, from which each person must judge the fairness of every law and social arrangement from behind a veil of ignorance. But is it really an alternative to thinking about the actual consequences of our behavior? Rawls seemed to do, saying there is no reason to think that just institutions will maximize the good To the degree that treating people as ends in themselves is a good way to safeguard human well-being, it is precisely what we should do. Fairness increases well-being, while injustice decreases the happiness of people in general. A genuine ethics should be universal, and not vulnerable to such unpleasant surprises encountered by having a double morality. That which is right cannot be dependent upon ones being a member of a certain tribeif for no other reason than one can be mistaken about the fact of ones membership

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 56
The fact that the feeling of reasoning objectively is often illusory does not mean, however, that we cannot learn to reason more effectively, pay greater attention to evidence, and grow more mindful of the everpresent possibility of error. It does not follow that there are no right and wrong answers to questions of morality. The Moral Brain The behavior of genuine, intentional, altruism is unique to humans. We know from neuroimaging studies that cooperation is associated with heightened activity in the brains reward regions. Thus, helping others should be thought of as serving the self in another mode. Without the engagement of such motivational mechanisms [we feel contempt/anger for the moral transgressions of others, guilt/shame over our own moral failings, and the warm glow of reward when we find ourselves playing nicely with other people], moral prescriptions would be very unlikely to translate into actual behaviors. Clearly, moral motivation can be uncoupled from the fruits of moral reasoning. A science of morality would, of necessity, require a deeper understanding of human motivation. The region of the brain central to discussions of morality and the brain is involved in emotion, reward, and judgments of self-relevance. A more detailed understanding of the brain processes involved in making moral judgments of this type (choosing between a personal and impersonal means of sacrificing one persons life to save many others) could affect our sense of right and wrong. Psychopaths The first neuroimaging experiment done on psychopaths found that, when compared to nonpsychopathic criminals and noncriminal controls, they exhibit significantly less activity in regions of the brain that generally respond to emotional stimuli. Psychopaths generally do not feel that anything is wrong with them and they enerally fail to distinguish between conventional and moral transgressions. Psychopathy could result from a failure to learn from the fear and sadness of other people. Evil Results of neuroimaging studies seem to concludet that all of our behavior can be traced to biological events about which we have no conscious knowledge: this has always suggested that free will is an illusion. Our sense of free will arises from a failure to appreciate this fact: we do not know what we will intend to do until the intention itself arises. Moral Responsibility The belief in free will underwrites both the religious notion of sin and our enduring commitment to retributive justice. Any scientific developments that threatened our notion of free will would seem to put the ethics of punishing people for their bad behavior in question. What does it really mean to take responsibility for an action? Judgments of responsibility depend upon the overall complexion of ones mind, not on the metaphysics of mental cause and effect. We condemn a persons intention to do harm and degrees of guilt are determined by the facts of the case. Viewing humans as forces of nature calls the logic of retribution into question. No human being stands as author to his own genes or his upbringing, and yet we have every reason to believe that these factors determine his character throughout life. The urge for retribution seems to depend upon our not seeing the underlying causes of human behavior. A full account of the causes of human behavior should undermine our natural response to injustice, at least to some degree. Our sense of our own free7dom results from our not paying attention to what it is actually like to be what we are. The moment we do pay attention, we begin to see that free will is nowhere to be found, and our subjectivity is perfectly compatible with this truth. Evil is subjective. Although our ancestors descended into an unpleasant valley on the moral landscape (e.g. out-group hostility) only to make progress toward a higher peak (e.g. in-group altruism), further scientific knowledge removes the need for this move. The Illusion of Free Will

3 Belief - SANTOS R.

-Syntactic language lies at the root of human ability to understand the universe, to communicate ideas, to cooperate with one another, etc. - Language allows mere words to substitute for direct experience, mere thoughts to simulate possible states of the world

- The brain then accepts such propositions, though words, as true -The common term for this acceptance is belief

What is belief?

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 57
-There is a conventional distinction between belief and knowledge, which is actually misleading - This distinction generally refers to degrees of certainty (know implies certainty, belief less so) - Most knowledge falls in between absolute certainty and belief - Memory can be equivalent to certain types of belief, as in a belief of something about the past - But belief is not mapped out in discrete portions of the brain - Beliefs draw upon associations in a persons consciousness such as knowledge about particular things - But beliefs themselves can be discretized and we can understand the brain states which allow us to accept statements as truths -Harris adopts a definition of belief as a process: The mental acceptance of a proposition, statement, or fact as true on the ground of authority or evidence. -This implies the equivalence of truth and belief for a particular person -belief in one proposition may affect how one treats other statements or propositions Looking for Belief in the Brain Human personality stems from a high-level of control of emotion and behaviour in the frontal lobes of the brain Hence belief is rooted in the brains capacity to accept facts But it cannot be mapped to a specific region of the brain The prefrontal cortex (PFC) plays a role in the formation of beliefs due to its control of emotions and complex behaviour; This is confirmed by fMRI imaging showing activity in the medial PFC (MPFC) True statements seem to elicit more activity in the MPFC reflecting a greater reward value in such statements Stated another way, we actually like truth The physiology of belief seems to be the same regardless of the propositions content (content-independence) Again the division between facts and values do not make sense in terms of brain function (higher truth=higher value) People may hold the same beliefs for very different reasons Systematic and reasoning errors account for some But mostly it stems form self-delusion, wishful thinking, group loyalties and other forms of bias Beliefs are often evaluated backdrop of other beliefs against the

Hence people are rarely open to revising their beliefs This is compounded by the internet-BOTH knowledge AND ignorance are increasingly becoming open-source The more competent a person is in a domain, the more aware he is of his limitations, hence the less vociferous he may be in expressing his opinions Conversely, those who know less are loudersay a religious dogmatist in the field of quantum mechanics or cosmology Conservatism and hence bias is controlled b a myriad of factors, the manipulation of which can swing views But generally, a belief system based on dogmatism is less susceptible to change and less responsive to reason or evidence But this also is true of liberalism Hence if a person holds a certain belief to align with a specific state of mind like self-delusion or wishful thinking, the less that person will be susceptible to reason or argument

Mistaking Our Limits Reason and emotion are inseparable Hence the validity of a belief cannot rest solely on conviction, it must stand the test of reason and evidence Risk-tolerance as a decision making parameter, increased dopamine levels show an increasing propensity to rely on mystical explanations for phenomena Same analogy between religion and witchcraft, if the explanation is indeed genetic or physiological, it can be curable Competing views expose beliefs to reasoning and evaluation and bears out inconsistencies in the system

The Tides of Bias

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 58
The seeming incorrectness of a belief may not necessarily limit its acceptability or ultimately its correctness The limits of understanding is rooted mainly in the facts of biology, hence this imposes the natural limitation on our reasoning Do We Have Freedom of Belief? People do not knowingly believe propositions for bad reasons A belief, to be actually believed, must seem to be true Belief must be in touch with reality, not flagrantly self-deluding insane or in error Beliefs cannot be adopted SOLELY because it makes a person feel good, this is because beliefs supposedly represent the truth about the world Thus a man who believes simply because it makes him happy cannot make realistic claims about the nature and truth of the world, which is not based on any foundation or justification (even to himself) But this does not mean we have no mental freedom; we can still choose for example to pick certain facts to the exclusion of others The effect of context also plays a role; the manner in which a proposition is phrased may influence beliefs about the same

Belief and Reasoning Many beliefs are products of inferences drawn from particular instances (induction) or from general principles (deduction) A bias is not merely a source of error, it is a reliable pattern of error But reasoning accounts only for a subset of the body of bliefs Some beliefs do not require reasoning but are nonetheless true

A World Without Lying Knowing what a person believes is equivalent to knowing whether or not he is telling the truth Neuroimaging has enabled researchers study how the brain functions while lying to -

CONCLUDING, Harris says that science has long been in the values business. Scientific validity is not the result of scientists abstaining from making value judgements; rather scientific validity stems from the effort of scientists to value principles of reasoning which link belief to reality The answer to the question what should i believe and why should i believe it? is generally a scientific one o o o Believe in a proposition because it is supported by theory and evidence; Verifiability; Because smart people have tried their best to disprove it and failed; BECAUSE IT TRUE (OR SEEMS SO)

Contrast this to the science of polygraphs which has been branded as lacking in scientific rigor The development of such new lie detectors would definitely change the world The truthfulness of conversations will become an established norm This raises some important legal questions such as regarding the rights to selfincrimination But such rights appear to be archaic and a relic of a superstitious age And the new technology will open doors to abuse and wrongful convictions But it will be no more perverse than it is now where judges have very poor gauges of truth anyway, hence anything that will raise their quality of measurement shall be an improvement to the world

o -

There are no facts without values //rds032411

4 Religion - SAN MIGUEL


RELIGION AND EVOLUTION Profession of Belief vs. Actual Belief

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 59
Religion is not a mere concentration of religious beliefs, as each religion has a wide variety of rites, prayers, purposes, etc. Most religious beliefs are anchored on what people believe to be true about both external and internal reality. However, it is important to make a distinction between what people say they believe and actual belief. Example: Harris provides the case of Catholics and the doctrine of Transubstantiation, wherein during Mass the bread and wine are turned into the body and blood of Christ. Many Catholics may value the ritual without believing that transubstantiation actually occurred. The same applies for the day of reckoning, creationism, and idea that the Bible is the literal word of God. Explanation: Pascal Boyer, an anthropologist, provides the theory that people do not accept these incredible religious doctrines because they have relaxed their standard of rationality. Rather, their rationality is relaxed because certain doctrines fit their inference machinery so to make these doctrines seem credible. What most religious propositions lack in plausibility, they make up for by being memorable, emotionally salient, and socially consequential. These are properties, which the human mind uses as the underlying structure of human cognition. Thus we are naturally predisposed to harboring religion. Predisposition to Religion As said earlier, religious propositions have elements that make it easy for humans to recognize. Given that religious affiliation is largely a matter of cultural inheritance, religious attitudes, and behaviors (culture, family religiosity, church rules, etc.), it is unlikely that there is a genetic explanation why some races tend to not believe in God and other races do. IS RELIGIOUS BELIEF SPECIAL? Belief and Disbelief Neuroscience and Belief In a UCLA neuroscience experiment, certain individuals (both religious and secular) were asked objective and religious questions and their brain stimuli were recorded. Questions such as Do eagles exist? and Do angels exist? were asked. The results show that belief and disbelief reactions were the same for both devoutChristians and non-believers. To what else can this behavior be attributed to other than the content of peoples beliefs? CLASH BETWEEN FAITH AND REASON The Soul and Reason The idea that there might be an immortal soul capable of reasoning, feeling love, remembering life events, etc, all the while being metaphysically independent of the brain seems untenable. Connection to the Brain The soul doctrine is weakened due to the account of the minds obvious dependency on the brain. Damage (naturally through age, accidental, or by account of defects) to the brains relevant neural circuits obliterates certain capacities in a living person. Are the souls of mental retardates are also retarded? Or those of individuals suffering from aphasia (total loss of language ability) able to speak and think fluently? Brains of other species Both groups were less certain regarding their religious belief compared to other non-religious stimuli. The distinction between belief and nonbelief seem to transcend the content of the questions asked. However, both these states of mind are tied to neural networks involving selfrepresentation and reward. DOES RELIGION MATTER? Consequences of Religious Belief Religious belief cannot influence a persons behavior Harris disagrees with Atran here Scott Atran alleges that core religious beliefs are senseless and is lacking in truth conditions, thus cannot influence a persons behavior. An example is of his research on Muslim suicide bombers, wherein he believes that such actions are not due to Islamic ideas about martyrdom and jihad, rather because of bonding among fictive kin. Whatever declarations of religious conviction may be attributed to values and moral obligations among kin and confederates. Beliefs have consequences (Harriss side) Harris provides examples of religious beliefs: albino flesh having magical properties, curative properties of human flesh, Egyptian mummified remains having mystical properties;

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 60
If the joint ancestors of chimpanzees and human beings did not have souls, at which point did we acquire ours? The common retort is that the behavior of humans is superior to other animals, and that they have no moral sense. Harris explains that animals are capable of feeling morality. Mice show greater distress at the suffering of familiar mice than unfamiliar ones. Monkeys starve themselves to prevent their cage-mates from receiving electrical shocks. Chimps and dogs have a demonstrable sense of fairness when receiving food awards. Given these facts, what difference does the human brain and those of others have in terms of feeling morality? Harriss Critique of Collins Francis Collins, the Director of the National Institute of Health, has the belief that God and The Creation can be explained in scientific design. Collins believes that God chose the mechanism of evolution, with the end goal of having humans capable of intelligence and morality. Harris states that as a scientist and educator, Collins should not make unjustified and unjustifiable claims about the structure of the universe and humanity. MAIN POINT Disclaimer: This is my own understanding of Harriss outlook on religion. Main Contention with Religion Religious belief affect an individual values, thus creates certain biases, judgments, and prejudices all of which may prevent him from attaining a peak in the moral landscape. An example of which is the ethical concerns with scientific advancements in embryonic stem-cell research. Harris critics Collins and his religious belief that brings about the doctrine of the soul, preventing speedy advancements in this field. Religion and Reason Religion affects the way individuals perceive and utilize reason. Harris gives examples: It is possible to be wrong and not know it (Ignorance) It is possible to be wrong and to know it, but to be reluctant to incur the social cost of admitting it (Hypocrisy) It is possible to be wrong, but to the fear of being wrong increases ones commitment to ones erroneous belief (Self-deception). Again, religious belief causes bias/prejudice which prevent people from using reason and logic to their betterment.

5 The Future of Happiness - MAGALANG


This is the last chapter of Sam Harris book. It is a short chapter, where basically he summarizes claims he made elsewhere in the book, expressing optimism that human morality is progressing and science is an important tool to assure this progress. Sam Harris is convinced that despite the perennial bad behavior of humans, our moral progress seems to be unmistakable, and this direction of moral progress will be maintained. History bears that our powers of empathy are clearly growing. In his words, [w]e will embarrass our descendants, just as our ancestors embarrass us o E.g. we are less tolerant about collateral damage in times of war and more uncomfortable with ideologies that demonize whole populations. o Racism in the US has diminished to a significant degree If it is true that moral truths transcend the contingencies of culture (and time), human beings should eventually converge in their moral judgments. Science and Philosophy Split between facts and values and therefore between science and morality is an illusion: o The boundary between science and philosophy does not always exist. We cannot always draw a line between scientific thinking and mere philosophy because all data must be interpreted against a background theory, and different theories come bundled with a fair amount of contextual reasoning. o Science is often a matter of philosophy in practice. o Once again, he discussed the work of Haidt in identifying two types of morality: liberal morality (concerned with harm and fairness) and conservative morality (concerned with harm, fairness, authority, purity and group loyalty). For Sam Harris, Haidt is wrong, because the extra factors attributed to conservative morality can be understood as further concerns about harm. Hence, there is no such thing as different systems of morality.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 61
Whatever differences between liberals and conservatives may be, one approach to morality is likely more conducive to human flourishing than the other. Hence, he tries to debunk the belief that there are many different types of morality. On Being Right and Wrong Harris uses the example of freedom of speech, right to privacy, and duty of government to keep its citizens safe as an example. At their extremes, each is hostile to the other two (as we all know in Consti 2). Harris concedes that we will never be able to answer the question of balancing these with absolute precision. However, he is certain that some arrangements could be better than others, and bad solutions could lead people to suffer as a result. He then uses the example of a couples decision to have a child. He cites a study that says that one of the most reliable ways of diminishing productivity is to start a family. How could this be reconciled with the desire to have children? Harris believes that these are not empty questions; reflecting about these things is actually tantamount to reflecting about the moral landscape (how people could move to higher states of well-being) Again, he makes the claim that science could have something important to say about values, because values relate to facts about the wellbeing of conscious creatures. But he makes a caveat that his claim would be disproved if a more important source of value that has nothing to do with the well-being of conscious creatures is discovered. But even if it is revealed that random brainstates could make different people equally happy, his claim for the importance of science, in particular, neuroscience, in understanding these would still stand. Harris hopes that scientists would get over their reluctance to make value claims because of the perceived dichotomy between facts and values. It is because of this moral relativism of science that faith-based religion was given a free reign to dictating what constitutes moral wisdom. He hopes that as science develops, we will recognize its application to the most pressing questions of human existence. If our well-being depends upon the interaction between events in our brains and events in the world, and there are better and worse ways to secure it, then some cultures will tend to produce lives that are more worth living than others; some political persuasions will be more enlightened than others; and some world views will be mistaken in ways that cause needless human misery.

Positive Psychology: The Psychology of Happiness Science of understanding human well-being at the level of the brain. Some of what psychologists have learned about human well-being confirms what everyone already knows: people tend to be happier if they have good friends, basic control over their lives, and enough money to meet their needs. But the best of this research also reveals that our intuitions about happiness are often quite wrong. Example: Sir Hilbays belief: Choice brings stress. It is good to have some level of choice, but the more choices we have, the more it makes us unhappy. We are also very bad judges of how we will feel in the future. This is called affective forecasting. We systematically overestimate the degree to which good and bad experiences will affect us. Which self should we satisfy? Harris identifies the difference between the experiencing self and the remembering self. These two selves often disagree in making judgments about or level of well-being. The experiencing self is the one that gives report on well-being by the moment. The remembering self on the other hand evaluates any experience by reference to its peak intensity and its final moments (peak/end rule). He uses the example of vacation in Rome and in Hawaii as an example to illustrate the difference between the perceptive ability of these two selves. But in the end, Harris makes the claim that the difference between perceptions of the two selves can actually be explained by vagaries of memory. Hence, the distinction between them is quite irrelevant, because the vast experiences in life never get recalled anyways.

What is Jurisprudence?

NATURE OF JURISPRUDENCE - LAGUNDA


Every jurist has his own notion of the subjectmatter and proper limits of jurisprudence; his approach governed by his ideology. Holmes describes this as inarticulate major premises. Law, like other social sciences, tends to reflect the ideologies of its place and time. The close relation of law to the social structure inevitably

brings into prominence the ideological context of legal theory.

The Relevance of Jurisprudence Skepticism towards theory among judges, legal practitioners, academic lawyers, and which may be shared by law students: reinforced by the fact that law in the university is of a fairly recent vintage, previously taught under an apprenticeship system.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 62
In contrast, universities in civil law countries were founded to educate for the professions, especially that of the law. An academic tradition, as against apprenticeship system, is more likely to inspire more philosophical attitudes and less impatience with mere theory. Kahn-Freud: any serious academic discipline must entail instilling in the student a capacity for critical thought. Legal education needs to teach both law and its context, social, political, historical and theoretical. Instead of regarding rules of law as simply something to be accepted as part of the natural order of society, every aspect of the legal system is now recognized as legitimate and pressing fields of study. The urge to understand and appraise the relevance of the subject-matter must lead directly from the apparatus of the rules and principles of the law to jurisprudential exploration of their meaning and their effects in society. Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law to justice and morality and about the social nature of law. This involves understanding and use of philosophical and sociological theories and findings in their application to law. Jurisprudence teaches students the rudiments of moral arguments. For the resolution of legal problems, jurisprudential thinking is important. Acquiring Social Knowledge Be concerned with action. Action arises from meanings which define social reality. People assign meanings to situations and to the actions of others, and react in terms of the interpretation suggested by these meanings. Action is the result of expectations arising out of past experience. Meaning is found within social life and history. The social scientist does not find the social world structureless but faces what society has preselected and pre-interpreted by means of common-sense constructs of reality of daily life. He uses constructs of constructs made by actors on the social scene. The task of the social scientist: transcend the common-sense world to discern its workings and patterns and relationships between actors; elicit meanings. Jurisprudence is concerned with rule-governed action, with the activities of officials such as judges and with the relationship between them and the population of a given society. Normative Character of Law Jurisprudence is a study of factual patterns of behavior. Human laws are rules or norms, which prescribe a course of conduct, and indicate what should happen in default. The sanction is merely indicative of what the rules itself prescribes, as the consequence of noncompliance. Normative rules state what should or ought to happen. The ought does not imply moral obligation, but merely relates to the duty of compliance with the rule on pain of suffering the prescribed penalty. Ought and Is That something ought to be done is not to give a factual description but to prescribe a course of conduct based on the implication that reasons exist for so acting, and also on the existence of standards and criteria of appraisal, by which those reasons may be judged. A rule of law, however, differs from this in that, though it only prescribes a course of conduct, it implies that it is derived from valid authority. The Need for a Comprehensive Jurisprudence Law as a system of norms and as a form of social control based on certain patterns of human behavior. To limit jurisprudence to one approach derived from one or other of these viewpoints is an unduly narrowing attitude. One must not exclude one in favor of the other because this will result in an incomplete picture of the subject-matter of jurisprudence. J. AUSTIN: The Jurisprudence Uses of the Study of

Proper Subject of Jurisprudence Positive Law law established or positum, in an independent political community, by the express or tacit authority of its sovereign of supreme government System or Body of Law the positive laws and rules of a community considered as a whole, and as implicated or connected with one another though every system has its differences, there are principles, notions and distinctions common to various systems General (or Comparative) Jurisprudence, or Philosophy (or General Principles) of Positive Law an extensive science, the subject of which is the various principles common to mature systems (as distinguished from those of crude [c]rude societies) the science concerned with the exposition of the principles, notions, and distinctions which -

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 63
are common to systems of law: understanding by systems of law, the ampler and mature systems, which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction of the principles, notions and distinctions that are the subjects of this science, some may be esteemed necessary Jurisprudence the word is not free from ambiguity denotes: (1) knowledge of Law as a science, combined with the art of practical habit or skill of applying it; or (2) Legislationthe science of what ought to be done towards making good laws, combined with the art of doing it legislation supposes jurisprudence, but jurisprudence does not suppose legislation, i.e. what laws have been and are may be known without a knowledge of what they ought to be with us, Jurisprudence is the science of what is essential to law, combined with the science of what it ought to be Particular Jurisprudence what is the relationship of their activity to some broader picture) function of jurisprudence to articulate and to examine critically these working theories, i.e. jurisprudence is not only the lawyers extraversion, but is also the lawyers introspection suggest changes or improvements, provide (their clients) guidance on how to set about performing tasks, develop new fields, re-think old ones and guide research (4) Synthesizing Function to chart and, where appropriate, to redesign the general map of the intellectual milieu of the law, i.e. to explore and articulate general frames of reference for law as an academic discipline his complaint: we do not have any maps that are both modern and accessible, whereas we should have several competing alternative ones; incoherence of many of our present efforts are in part attributable to different aims and concerns, but also in part, to lack of coherent frames of reference for those who have similar concerns and aims J. SHKLAR: Legalism Law and Ideology Legalism ethical attitude that holds moral conduct to be a matter of rule following, and moral relationship to consist of duties and rights determined by rules expresses itself not only in personal behavior but also in philosophical thought, in political ideologies and in social institutions complex of human qualities inarticulate, individual code of conduct has provided the standards of organization and the operative ideals for a vast number of social groups has served as the political ideology of those who cherish these systems of law and, above all, those who are directly involved in their maintenancethe legal profession, both bench and bar as an ideology: expresses itself in policies, institutional structures and intellectual attitudes; the common element in all the various and conflicting modes of legal thinking as a social outlook: combination of dislike of vague generalities, preference for case-by-case treatment, of all social issues, structuring of all possible human relations into the form of claims and counter-claims under established rules, belief that the rules are there T.S. KUHN: The Structure of Scientific Revolution Introduction [Got this intro from Prof. Frank Pajares, Emery University, at http://www.des.emory.edu/mfp/kuhnsyn.html] -

science of any actual system of law, or of any portion of it the only practical jurisprudence is particular General or Universal Jurisprudence proper subject: a description of such subjects and ends of Law as are common to all systems, and of those resemblances between different systems bottomed in the common nature of man, or correspond to the resembling points in their several positions

W.L. TWINING: Some Jobs for Jurisprudence Functions of Legal Theorizing (1) Conduit Function the jurist ventures forth from the intellectual milieu of the law and comeS back with, and assimilateS into the intellectual milieu of the law, ideas, techniques and insights from one or more neighboring disciplines that offer respecting questions of a general nature that have been thrown up in legal contexts (2) High Theory fundamental issues such as nature and functions of law, concept of a legal system, relationship between law and morality, differences between law and other types of social control, questions about justice, questions about the epistemological and other fundamental assumptions of legal discourse (3) Development of Working Theories and of Theories of the Middle Order participants in legal activities (e.g. solicitors, judges, law reformers, textbook writers) have working theories (conceptions of the nature of their tasks, how best to go about them and

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 64
A scientific community cannot practice its trade without some set of received beliefs. These beliefs form the foundation of the "educational initiation that prepares and licenses the student for professional practice". The nature of the "rigorous and rigid" preparation helps ensure that the received beliefs are firmly fixed in the student's mind. Scientists take great pains to defend the assumption that scientists know what the world is like...To this end, "normal science" will often suppress novelties which undermine its foundations. Research is therefore not about discovering the unknown, but rather "a strenuous and devoted attempt to force nature into the conceptual boxes supplied by professional education". A shift in professional commitments to shared assumptions takes place when an anomaly undermines the basic tenets of the current scientific practice These shifts are what Kuhn describes as scientific revolutions - "the tradition-shattering complements to the tradition-bound activity of normal science" New assumptions "paradigms" - require the reconstruction of prior assumptions and the re-evaluation of prior facts. This is difficult and time consuming. It is also strongly resisted by the established community. Normal Science and Paradigms Normal Science research firmly based upon one of more past scientific achievements that some particular scientific community acknowledges for a time as supplying the foundation for its further practice these achievements must be: (1) sufficiently unprecedented to attract an enduring group of adherents away from competing modes of scientific activity; and (2) open-ended to leave all sorts of problems for the redefined group of practitioners to resolve. Paradigms achievements characteristics that share those two

The study of paradigms prepares the student for membership in the particular scientific community with which he will later practice. Men whose research is based on shared paradigms are committed to the same rules and standards for scientific practice. That commitment and the apparent consensus it produces are prerequisites for normal science, i.e. for the genesis and continuation of a particular research tradition. Scientific Revolution Discovery commences with the awareness of anomaly, i.e. with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science; and closes only when the paradigm theory has been adjusted so that the anomalous has become the expected. Once it has achieved the status of paradigm, a scientific theory is declared invalid only if an alternative candidate is available to take its place. The decision to reject one paradigm is always simultaneously the decision to accept another, and judgment involves comparison of both paradigms with nature and with each other. When an anomaly comes to seem more than just another puzzle of normal science, the transition to crisis and to extraordinary science has begun. The anomaly itself gets more and more attention from the profession. The transition from a paradigm in crisis to a new one from which a new tradition of normal science can emerge is a reconstruction of the field from new fundamentals. The resulting transition to a new paradigm is scientific revolution.

NATURAL LAW

LIBERTARIAN JUSTICE CALDERON / MATIAS


1 The Libertarian Manifesto John Hospers (CALDERON) Libertarianism Every human being has the right to act in accordance with his own choices, unless those actions infringe on the equal liberty of other human beings to act in accordance with their choices. Other ways of stating the libertarian thesis: 1. No one is anyone elses master, and no one is anyone elses slave.

From the Latin libertas =liberty


Doctrine that every person is the owner of his own life, and that no one is the owner of anyone elses life.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 65
Property includes anything you can call your own. The right to property is the right to work for it, to obtain it non-coercively, the money or services which you can present in voluntary exchange. o It is not the right to just take it from others, for it would interfere with their property rights. Government has always been the chief enemy of the right to property. o By taxation o By nationalizing industries o By inflation

owns the life of anyone else, no one has the right to enslave another. No one has the right to use force to enslave the life of another, or any portion or aspect of that life. 2. Other mens lives are not ours to dispose of. State subsidy of a project (for example, opera) is nothing more or less than legalized plunder. No one has the right to take by force from the workers pockets to pay for what they want. To take money from someone forcibly, because in his/her opinion it would be good for the other person, is still seizure of the other persons earnings, which is plunder. A hundred men might gain great pleasure from beating up or killing just one insignificant human being; but other mens lives are not theirs to dispose of. 3. No human being should be a nonvoluntary mortgage on the life of another. The fruit of one mans labor should not be fair game for every freeloader who comes along and demands it as his own.

Slavery is forced servitude, and since no one

Libertarian doctrine is embedded in a view of the rights of man. Each human being has the right to live his life as he chooses, compatibly with the equal right of all other human beings to live their lives as they choose. Each man has the right to o Life: any attempt by others to take it away from him, or even to injure him, violates this right, through the use of coercion against him. o Liberty: to conduct his life in accordance with the alternatives open to him without coercive action by others. o Property: to work to sustain his life (and those of whichever others he chooses to sustain, such as his family) and to retain the fruits of his labor. The right to property is as basic as the right to life and liberty: because without property rights, no other rights are possible. Every right entails a duty, but the duty is only that of forbearance, that is, of refraining from violating the other persons right. Government did not create these rights. o Governments recognize and protect the rights that individuals already have. The right to property The most misunderstood and unappreciated of human rights, and the one most constantly violated by governments

Depriving people of property is depriving them of the means by which they live, the freedom of the individual citizen to do what he wishes with his own life and to plan for the future. Property rights are what makes long-range planning possiblethe kind of planning which is a distinctly human endeavor. The right to property may well be considered second only to the right of life. Even the freedom of speech is limited by considerations of property o Ex. A person does not have the right to shout Fire! falsely in a crowded theater, because the owner of the theater has permitted others to enter and use his property only for a specific purpose, that of seeing a film or watching a stage show.

Individual v. Communal Property Rights Communal living involves no violation of individual rights, as long as everybody consents to this arrangement and no one is forced to join it. o As long as they can get out of the arrangement if they no longer like it, no violation of rights is involved. If everybody owns everything, then everyone has an equal right to go everywhere, do what he pleases, take what he likes, destroy if he wishes, grow crops or burn them, trample them under, etc. Since no one would be responsible for anything, the property would soon be destroyed, the food used up, the facilities nonfunctional. Property that someone can use would end up as something that no one can use. If the principle continued to be adopted, no one would build anything any more.

How can any of mans rights be violated?

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 66
Only by the use of force Behavior that requires the unwilling involvement of other persons Need not involve the use of physical violence o Ex. Trespassing on someones property or dumping garbage on it without permission is violating property rights, since it is a case of someone being an unwilling victim of the action. o Stealing a manuscript and publishing it as his own is confiscating a piece of someones property and thus violates that persons right to keep the product of his labor. Government Ex. The orchards of farmers from the smoke of nearby factories of locomotives The remedy is simply to enjoin anyone from injecting pollutants into the air, and thereby invading the rights of persons and property. The argument that such an injunction prohibition would add to the costs of industrial production is as reprehensible as the pre-Civil War argument that the abolition of slavery would add to the costs of growing cotton, and therefore should not take place. o

The violation of rights does not apply only to airpollution. For example, if someone with a factory upstream on a river pollutes the river, anyone living downstream from him, finding his water polluted, should be able to sue the owner of the factory. In this way the price of adding the antipollutant devices will be the owners responsibility, and will probably be added to the cost of the products the factory produces, and thus spread around among all consumers, rather than the entire cost being borne by the users of the river in the form of polluted water.

the protector of the citizen against aggression by other individuals, limited to the retaliatory use of force against anyone who initiates it. To do this, government must have physical power, i.e. the police, to protect the citizen from aggression within his borders and the armed forces, to protect him from aggressors outside. Beyond that, the government should not intrude upon his life, either to run his business, or adjust his daily activities, or prescribe his personal moral code. Government undertakes to be the individuals protector; but historically governments have gone far beyond this function. o It has often itself become a greater aggressor. The function of government should be the protection of human rights. Right to life: legislation that will protect human beings against the use of force by others, e.g. laws against physical violence Right to liberty: there should be no laws compromising in any way freedom of speech, of the press, and peaceable assembly, no censorship Right to property: legislation that protects property rights of individuals against confiscation, nationalization, eminent domain, robbery, trespass, fraud and misrepresentation, patent and copyright, libel and slander.

The only proper role of government is that of

Inheritance You have no right to it until someone decides to give it to you, for example if someone willed it to you. o It was his, he had the right to use and dispose of it as he saw fit, and if he decided to give it to you, it was but an exercise of his right. Had the property been seized by the government at the mans death, or distributed among numerous other people designated by the government, it would have been a violation of his rights.

Intellectual property

Property vis--vis property rights Another violation of property rights that has not thus far been honored by the courts has to do with the effects of pollution of the atmosphere. Polluters are able to impose the high costs of pollution upon those whose property rights they are allowed to invade with impunity.

Government protects the products of your labor from the moment they materialize. Copyright law protects your writings from piracy Patent law protects your inventions for a limited period, which varies according to the type of invention. In no case are you forced to avail yourself of this protection; you need not apply for patent or copyright coverage if you do not wish to do so. o But the protection is there, in case you wish to use it.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 67
Property status of airwaves Government claims ownership of airwaves, leasing them to individuals and corporations. Government decides who shall use the airwaves and one courts its displeasure only at the price of a revoked license. The policy that should have been observed with regard to the airwaves is that of a first come, first served basis. o The first man who used a given frequency would be its owner, and the government would protect him in the use of it against trespassers. If others wanted to use the same frequency, they would have to buy it (just as one now does with land). With the restrictions removed, the economy would flourish as never before.

2 From Liberty to Welfare James P. Sterba Libertarians are strongly united in opposition to welfare rights and the welfare state. The author argues that this libertarian opposition to welfare rights and a welfare state is ill-founded. o Welfare rights can be given a libertarian justification, and once this is recognized, a libertarian argument for a welfare state, unlike libertarian arguments for the night watchman state, is both straightforward and compelling. Libertarians have defended their view in basically two different ways. However, on either approach welfare rights and a welfare state are morally required. 1. Spencerian Libertarianism Following Herbert Spencer a. Defined liberty as the absence of constraints b. Took a right to liberty to be the ultimate political ideal c. Derived all other rights from this right to liberty The principal difficulty with this approach: unless one arbitrarily restricts what is to count as an interference, conflicting liberties will abound, particularly in all areas of social life.

Three types of laws 1. Laws protecting individuals against themselves Libertarians reject such class of laws totally Behavior which harms no one else is strictly the individuals one own affair. 2. Laws protecting individuals against aggressions by other individuals Laws should be limited to this class only These are laws whose function is to protect human beings against encroachment by others o This is the sole function of government 3. Laws requiring people to help one another Ex. Welfare Libertarians also reject this class of laws totally No one should be forced by law to help others. All such laws constitute what libertarians call moral cannibalism o Believing that he has a right to live off the spirit of other human beings o Believing that he has a moral claim on the productive capacity, time, and effort expended by others All those who demand this or that as a free service are consciously or unconsciously evading the fact that there is in reality no such thing as free services. If you demand something free, you are demanding that other men give their time and effort to you without compensation. To expect something for free is to expect it to be paid for by others whether they choose to or not. questions

The Want Conception of Liberty Liberty is being unconstrained by other persons from doing what one wants. Limits the scope of liberty in two ways a. Not all constraints whatever their source count as a restriction of liberty; the constraints must come from other persons. b. Constraints that have their source in other persos, but that do not run counter to an individuals wants, constrain without restricting that individuals liberty.

Other

Should government have a role in assisting the


needy, in providing social security, in legislating minimum wages, in fixing prices and putting a ceiling on rents, in curbing monopolies, in erecting tariffs, in guaranteeing jobs, in managing the money supply? NO.

The Ability Conception of Liberty Liberty is being unconstrained by other persons from doing what one is able to do. There will be numerous liberties determined by the Ability Conception that are not liberties according to the Want Conception.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 68
The major problem in this regard concerns what is to amount as a constraint. o Negative liberty: constraints include only positive acts of others that prevent people from doing what they otherwise are able to do. o Positive liberty: constraints include both positive and negative acts of others that prevent people from doing what they are otherwise able to do. In a typical conflict situation between the rich and the poor, the rich have more than enough resources to satisfy their basic needs. By contrast, the poor lack the resources to meet their most basic nutritional needs even though they have tried all the means available to them that libertarians regard as legitimate for acquiring such resources. Libertarians usually maintain that the rich should have the liberty to use their resources to satisfy their luxury needs if they so wish. Libertarians just think that a right to liberty always has priority over other political ideals. Rights, such as the right to life and right to property, as libertarians claim, can at best support only a limited role for government. According to libertarians, acts of charity should not be coercively required, because the liberty of the poor is not thought to be at stake in such conflict situations. In fact, however, the liberty of the poor is at stake in such conflict situations. What is at stake is the liberty of the poor to take from the surplus possessions of the rich what is necessary to satisfy their basic nutritional needs. The author submits that the liberty of the poor is morally preferable to the liberty of the rich, which is the liberty to use ones surplus resources for luxury purposes. As long as libertarians think of themselves as putting forth such a moral ideal, they cannot allow that it would be unreasonable both to require the rich to sacrifice their liberty in order to benefit the poor. This case for restricting the liberty of the rich depends upon the willingness of the poor to take advantage of whatever opportunities are available to them for satisfying their basic needs by engaging in mutually beneficial work. o Failure of the poor to take advantage of such opportunities would normally cancel or at least significantly reduce the obligation of the rich to restrict their own liberty for the benefit of the poor. o The case for restricting the liberty of the rich for the benefit of the poor is neither unconditional nor inalienable. If a right to liberty is taken to be the ultimate political ideal, then, contrary to what libertarians claim, not only would a system of welfare rights be morally required, but also such a system would clearly benefit the poor.

2. Lockean Libertarianism Following John Locke a. Took a set of rights, including, typically, a right to life or self-ownership and a right to property, to be the ultimate political ideal b. Defined liberty as the absence of constraints in the exercise of these fundamental rights c. Derived all other rights including a right to liberty from these fundamental rights The principal difficulty with this approach: as long as a persons rights have not been violated, her liberty would not have been restricted either, even if she were kept in prison for the rest of her days.

Ought implies can principle People are not morally required to do what they lack the power to do or what would involve so great a sacrifice that it would be unreasonable to ask them to perform such an action. Applying the principle, the poor have it within their power to willingly relinquish such an important liberty as the liberty to take from the rich what they require to meet their basic nutritional needs. Nevertheless, it would be unreasonable to require them to make so great a sacrifice. Unlike the poor, the rich could not claim that relinquishing their liberty to meet some of their luxury needs involved so great a sacrifice that it would be unreasonable to require them to make it; unlike the poor, the rich could be morally blameworthy for making such a sacrifice.

The Rights Conception of Liberty Liberty is being unconstrained by other persons from doing what one has a right to do. Presumably, a right to life understood as a right not to be killed unjustly would not be violated by defensive measures designed to protect ones person from life-threatening attacks. o Yet would this right be violated when the rich prevent the poor from taking what they require to satisfy their basic nutritional needs? Since such acts of the rich preventing the poor from taking what they require to meet their basic nutritional needs involve resisting the

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 69
life-preserving activities of the poor, when the poor do die as a consequence of such acts, it seems clear that the rich would be killing the poor, whether intentionally or unintentionally. Ought implies can principle Can be used to assess two opposing accounts of property rights a. A right to property is not conditional upon whether other persons have sufficient opportunities and resources to satisfy their basic needs. o The initial acquisition and voluntary agreement of some can leave others, through no fault of their own, dependent upon charity for the satisfaction of their most basic needs. b. Initial acquisition and voluntary agreement can confer title of property on all goods and resources except those surplus goods and resources of the rich that are required to satisfy the basic needs of those poor who through no fault of their own lack opportunities and resources to satisfy their own basic needs. o It would be unreasonable to require the poor to accept anything other than some version of the second account of property rights. If we assume that however else we specify the requirements of morality, they cannot violate the ought implies cab: principle, it follows that, despite what libertarians claim, the right to life and the right to property endorsed by libertarians actually support a system of welfare rights Action welfare rights: welfare rights that have been established against the libertarian Can be violated only when other people through acts of commission interfere with a persons exercise of that right Action and recipient welfare rights: welfare rights endorsed by liberal [democrats] Can be violated by such acts of commission and by acts of omission as well But once libertarians come to recognize the legitimacy of action welfare rights, then in order not to be subject to the poor persons discretion in choosing when and how to exercise her action welfare right, libertarians will tend to favor two morally legitimate ways of preventing the exercise of such rights Provide the poor with mutually beneficial job opportunities Institute adequate recipient welfare rights that would take precedence over the poors action welfare rights o Thus, ending up endorsing the same sort of welfare institutions favored by liberal [democrats] Once a system of welfare rights is seen to follow irrespective of whether one takes a right to liberty or rights to life and property as the ultimate political ideal, the justification for a welfare state becomes straightforward and compelling o Welfare rights could be adequately secured with enforcement agencies o Only a welfare state would be able to effective solve the large-scale coordination problem necessitated by the provision of welfare. Libertarian Objections Tibor Machan: Individuals and their Rights Grants that that if the type of conflict cases described between the rich and the poor actually obtained, the poor would have a right to welfare, but denies that such cases actually obtain. But the poors right to welfare is not claimed to be unconditional Only when the poor lack sufficient opportunity to satisfy their own basic needs would their right to welfare have any practical moral force. Machan thinks that virtually all of the poor have sufficient opportunities and resources to satisfy their basic needs and that therefore, a right to welfare has no practical moral force. Sterba thinks otherwise. o Most of the 1.2 billion people who are living in conditions of absolute poverty obviously lack the opportunities and resources to satisfy their basic needs o Even 32 million Americans live below the official poverty index. Douglas Rasmussen Concedes that the poor lack the opportunity to satisfy their basic needs Two ways this can occur a. Only a few of the poor lack the opportunity to satisfy their basic needs Libertarian property rights still apply even though the poor who are in need morally ought to take from the surplus property of the rich what they need for survival. Thus, the poor who do take from the legal property of the rich can be arrested and tried, but their punishment should simply be left to the judges to decide. Rejects the suggestion that the law should make an exception for the poor. o One can never have perfect symmetry between what is moral and what the law requires. But if it would be unreasonable to require the poor to do anything contrary to meeting their basic needs at minimal cost to the rich, it would be equally unreasonable to punish the poor for actually doing just that.

a. b.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 70
There are cases where opposing the law, even when what it requires is immoral, would do more harm than good. o When there is a bona fide disagreement over whether what the law requires is morally wrong, both sides justifiably thinking that it is or is not morally right. constrained against our consent within our realm of authority- ourselves and our belongings. Rights (as defined by Rand) are the link between the moral code of a man and the legal code of a society, between ethics and politics. Individuals rights are the means of subordinating society to moral law. Sterbas Arguments We all have the rights to receive the goods and resources necessary for preserving ourselves. Welfare rights follow from the libertarian theory itself. If Lockean Libertarianism is correct, then we all have rights to welfare and equal(economic) opportunity. Machans Arguments Human beings have the right not to be killed, attacked and deprived of their property- by persons in or outside the government Lockean Libertarianism is true, and since rights to welfare and equal opportunity violate these rights The reason some people, including Sterba, believe otherwise is that they have found some very rare instances in which some citizens could find themselves in circumstances that would require disregarding rights altogether. This would be in situations that cannot be characterized to be where peace is possible. The problem with this view of Lockean Libertarianism is that political justice (perfect virtue) for natural rights theorists presupposes individual rights. One cannot then explain rights in terms of justice but must explain justice in terms of rights. For a Lockean Libertarian, to possess any basic right to receive the goods and resources necessary for preserving ones life conflicts with possessing the right not to be killed, assaulted or stolen from. The point of a system of rights is the securing of mutually peaceful and

However, in this case, nothing of the sort obtains. It is clear in this case that there are no grounds for upholding any asymmetry between what morality and the law require. Accordingly, the law in this case should be changed to favor the poor. b. Many of the poor lack the opportunity to satisfy their basic needs Libertarian property rights no longer apply The poor should take what they need for survival from the legal property of the rich and that the rich should not refuse assistance. But the poor still have no right to assistance in this case, nor the rich any obligation to help the poor because the situation cannot be judged in social and political terms. o Sterba questions, why not? If we know what the moral directives of the rich and the poor are in this case, there is no reason why we would not be justified in setting up a legal system or altering an existing one so that the poor would have a guaranteed right to welfare.

3. The Non Existence of Basic Welfare Rights MATIAS Tibor R. Machan Definition of Terms (c/o Wikipedia) Negative Liberty - freedom from interference by other people Negative Rights - a right not to be subjected to an action of another person or groupa government, for exampleusually in the form of abuse or coercion. Positive Liberty as the power and resources to act to fulfill one's own potential Positive Rights - is a right to be subjected to an action of another person or group. (This is basically a rebuttal of the second article written by James Sterba) From the Article The ideal of liberty to Lockean Libertarians means that we all, individually, have the right not to be

Libertarians despite their belief that they are only supporting the enforceable right of every person not to be coerced by other persons, libertarians must accept, by the logic of their own position, that individuals also possess basic enforceable rights to being provided with various services from others. He holds then, that basic negative rights imply basic positive rights. Sterba states that for Lockean Libertarians Liberty is being constrained by persons from doing what one has a right to do.Sterba adds, somewhat misleadingly that a right to life is not to be killed unjustly and a

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 71
right to property is a right to acquire goods and resources either by initial acquisition or voluntary agreement. Sterba asks us to consider what he calls a typical conflict situation between the rich and the poor Rich- have more than enough resources to satisfy their basic needs. Poor lack the resources to meet their most basic needs even though they have tried all the means available to them that libertarians regard as legitimate for acquiring such resources. MOST CRITICS OF LIBERTARIANISM (not necessarily Sterba) assume some doctrine of basic needs that they invoke to show that whatever basic needs are not satisfied for some people, while others have resources that are not basic needs for them, the former have just claims against the latter. Without guaranteeing welfare and equalopportunity rights, Lockean libertarianism violates the basic tenets of any morality, namely, that ought implies can (that one ought to do what one is free to do, that one is morally responsible only for those acts that one had the power either to choose to engage in or not engage in) Sterbas strongest argument: Ought implies can is violated when the rich prevent the poor from taking what they require to satisfy their basic needs even though they have tried all the means available to them that libertarians regard as legitimate for acquiring resources. Sterba further argues that the act of the rich person in preventing the poor consistent moral conduct on the part of human beings. The goal of the theory of rights would be defeated if rights were typically in conflict. person from satisfying their basic needs effectively made the rich person liable for what happened to the poor person (i.e. poor person starved to death, rich person let him die so he is killed him.) community in which peace is possible These are not typical conflict situations in society. Even thieves and robbers still have a means to support themselves. There is much that unfortunate persons can and should do in those plausible, non-emergency situations that can be considered typical. They need not resort to violating the privateproperty rights of those who are better off. This doctrine lacks foundation for why the needs of some persons must be claims upon the lives of others. Why are there such needs anyway to what end are they needs, and whose ends are these and why are not the persons whose needs theya re held responsible for supplying the needs? Acts of protectiveness (of property) make it possible for men and women in society to retain their own sphere of jurisdiction intact , protect their own moral space. They are treating the victims life and its productive results as though these were unowned resources for them to do with as they choose. Machan concedes that on some occasions there can be people who, with no responsibility for their situation, are highly unlikely to survive without disregarding the rights of others and taking from them what they need. But such cases are not typical. That (libertarianism) system is developed for a human When someone is suffering from misfortune and there are plenty of others who are not, and the unfortunate person has no other avenue for obtaining help than to obtain it from others, it would not be unreasonable to expect, morally that the poor seek such help as surely might be forthcoming. Sterbas criticism of Machans book Individuals and their Rights states that within a libertarian system many people would have no chance for self-directed flourishing. Poverty is typical, including of libertarian societies Libertarians draw a sharp distinction between those who are in dire straits because they are unfortunate, through no fault of their own and those who fail to act in ways that would probably extricate them from their adverse living conditions. Libertarians believe that respect for and protection of negative individual liberty or the right to it would produce a better life for most people, in all relevant aspects, provided that they make an effort to improve themselves. The most prosperous and otherwise beneficial societies are also those that give greatest respect and protection to negative individual rights/

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 72
There can be people in a libertarian society for whom a lack of wealth, even extreme poverty relative to the mean, may not be a great liability. Sterba also underestimates the objective generosity or charity of libertarians. 4. Contracting for Liberty By Jan Naverson Politics and Reason Libertarianism is attractive to most people but they regard it as obviously truescarcely in need of argument. The result is they are virtually barred from convincing anyone who doesnt already incline towards their outlook. This essay is a brief defense of the proposal that they are actually good reasons for adopting the libertarian program above any other, and that these reasons can be explicated in a plausible way. The Other views Political and Moral Views have been argued for on such bases as ideals of virtue, the will of God, self-evidence, and, in one way or another, nature. Contractarian view may be aligned with one kind of natural law.1 Morals are for people: if a theory is to work it must be shown that it appeals to people. Those who propose that politics are based on natural law or nature may be obscurely appreciating this point. Re is unclear. But the claim that some view is based on the nature of things or on human nature is unclear. Talk of conforming to nature makes no literal sense; Nature simply is. It sets limits to what is possible and prescribe nothing. A natural law theory should say, in the end, that in view of the way things and people are, subscribing to this set of rules or virtues is our best means of accommodating them. What makes it best? To say that nature determines which choice to make is pointless: We must choose it. NATURAL LAW A rule or a value is natural when it is ones rationally best response to ones circumstances.2 The Contractarian Idea Contract In contracts, people make their behavior conditional on each others performance. An inward impetus of the will is required to make it work. That is morality. Now and again, one of the parties concerned may lack the necessary inner commitment. We may then have to resort to external imposition, sometimes force. A contract is social when it is a conditional arrangement of each with all. The building block of such a contract is an arrangement between oneself and whoever comes to treat them thus-and-so provided they do likewise. The prospect of mutual benefit is what underwrites social reinforcement of contracts generally, and in particular the commitment to refrain from force in the pursuit of ones goals. We rationally expect all to adhere to that rule: it is a rational commitment. Commitment is rational only where one can expect reciprocitywhich in turn can only be expected if the one party can expect it from you. Distinction between two senses of expect;

(1) To predict and (2) to insists, that is, to feel


entitled to performance. In so insisting, we invoke the support of anyone and everyone in the social environmentnot just that of our interactee. Naversons claim: rational people will give weight to morality as here explained, in the form of a disposition to abide by agreements and to refrain from trying to get ones way through sheer force. Social contract has in common with all contracts that (1) it is the reciprocal conditionalizing of behavior and (2) it involves commitment from those concerned. But
2

Inadequacy of other theories:

Virtue theories fail because their ideas of virtue are never shared by all and are unprovable to those who disagree. Appeals to authority fails because they are circular. What the Authority says is right because he is right. Self-evidence what will we do to those who do not see the self-evident?

This was the basis for Hobbes Laws of Nature and he got them right.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 73
it is of course an unspoken understanding, a nonnegotiated agreementan agreement in action not in words nor preceded by words. Each party adopts a disposition to respond in ways that make the resulting interaction mutually preferable to its alternatives. Such dispositions are moral virtues. Naverson argues that this disposition is a virtue. The Libertarian Idea Libertarianism is not a view about the same thing as contractarianism. The latter is a metatheory of morals and politics. It holds that the principles of morals, whatever they may turn out to be, are those we all do have reason to agree on provided all others accept them as well. The reason for agreeing: we do better in the condition where all comply with the proposed principles. The libertarian strategy is to resort to force only to counter the aggression of others. The libertarian theory is contractually grounded only if (1) libertarianism is the best rule for everybody in the way of general restrictions on behavior, and (2) no other way of arriving at the virtue in question is plausible. The Universal Social Contract, the agreement of all with all, calls for nothing more nor less than to refrain from the use of force to attain ones goals. To be at liberty is to have no obstacles impeding ones efforts. To be at social liberty, liberty in relation to ones fellows is for them to refrain from impeding ones effort. Liberty cannot sensibly be regarded as an intrinsic value. One values liberty because there are things that one values, and liberty is necessary for getting them by ones own efforts. Others will talk of positive liberty. We do not prefer supposed positive liberty, which must always be at the expense of others, to negative liberty which can be had by all. Only some prefer that. Liberty and Property Liberty is the absence of Impediments. In general nonimpediment entails respecting property broadly speaking. Liberty= property. To own something is to have the right to do with it as one pleases: the disposition of that thing is up to you, not someone else. To act is to make use of ones own capacities, ones own equipment and abilitieslimbs etc. Just as we can do what we wish with the natural parts of our own person, bodily and psychological, so we may do what we wish with bits of external nature, so long only as we do not thereby damage or impede the use by others of such objects. The correct view is that you can use whatever you find if nobody else already has it. Once you begin to use it, then anyone else who comes along will interfere with your already-commenced train of action if he renders it impossible for you to continue. The State of Nature The classic political philosophers of the modern era thought to derive the principles of politics from hypotheses about how things would be .for people in a state of nature the situation where people interact in the absence of any authoritatively exercised general controls. This raises two questions: (1) can this be useful conception, seeing that such states do not seem to occur in human affairs? (2) does the utility of contractarianism depend on the real possibility of such states? Three distinctions between the hypothetical and actual states of nature (1) If such a condition is at least possible, and if (2) from the point of view of any individual it would be terrible if it did occur, and if (3) certain behavior patterns in humans do head us toward such a condition unless certain social arrangements are made, then there need not eventually be any such to show that we have reason to avoid these patterns. (2) Political vs. Moral distinctions of the idea a. Political State of nature a social condition without political institutions Moral State of nature- a social contract without morals.

b.

(2) Partial vs. Complete states of nature

a.

A social condition is a partial state of nature if it has aspects of apoliticality or amorality, even though in other respects there are laws of moral inhibitions.

A state of nature that couldnt even approximately obtain under any circumstance is indeed pointless. (i.e. Rawls veil of ignorance). But if the condition in question is clearly possible , and it can be established that we really would tend toward that condition unless we do x, while x produces a condition clearly superior to it, then we have an argument for doing x. Starting Where We Are

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 74
Having helpful dispositions at hand are useful for dealing with unforeseen circumstances. The contractarian proposal is that among these handy disposition s are recognizably moral ones, whose utility has a lot to do with the network of expectations we can or do generate by encountering and reflecting on the behavior of others with whom we interact. If my proposed action and your proposed response would produce alterations for the better from both our points of view, as compared with any obvious alternatives, and by reference to the status quo, then agreement between us about that particular interaction, is prima facie, rational. If a proposed rule would make for improvement over the current situation for all concerned, then we have a plausible argument for adopting such a rule. Nonunanimity What to do about those who will agree to nothing? Hobbes: everyone elses behavior is, obviously, utterly unrestricted in relation to them. Sorting Interests For purposes of morals, what matters about an interest in others is whether that interest is positive or negative.: would its satisfaction be a pro or a con to those others. Where interests conflict, agreement requires a rationale for allowing one to be subject to the overturning at the hands of some other. It must be shown that theres something in it for himthat he stands to gain from the rule even if it is imposed on him by force. Inherently conflicting interests cannot be imposed by a public charter. Liberal Interests are interests that do not take as their object the dissatisfaction of anyone else. The pursuit of private wealth is, if pursued by consensual means, inherently nonconflictual. Endeavoring to increase ones own wealth has no logical relation to other persons level of wealth. But we shall also note that when we improve it by commercefree exchange with othersthen we benefit others even as we benefit ourselves. Charity has a place of honor, however charity is the exception not the rule. Welfare Would contractarianism confirm the libertarians refusal to allow coercively extracted support of the socalled safety net for the poor, public school, socialized medicine, and so on? YES. Nobody can deny that people enjoying a higher rather than a lower level of welfare, is generally speaking, a good thing. What must be shown is that rational people will not modify or qualify the general duty of nonimposition, and opt instead for the idea that we do all owe each other something: for instance, a social minimum, funds for which we may extract from everyone, by force if need be. Naverson agrees that there is no difference between forcibly taking money from someone at gunpoint and taking money for welfare. Arguments: 1. The world has over 5 billion inhabitants of whom 1 billion enjoy first world status. But if the alleged duty to provide a safety net for the poor had the status of a general duty to poor humans, no state welfare program would make any sense. All such programs would have to become universal-scope foreign aid programs. Yet virtually no supporter of the Welfare State accepts this obligation because politics and the self-interest of some few play the major role in the equation, high principle having little to do with it. The libertarian principle says that force is to be confined to dealing with aggression, and may not be used for any other end, however noble it may seem. This includes the welfare of others such as the poor. There is good reason to consider arrangements whereby many people agree each to pay for the operations of the others, should need arise, for ex, by paying a certain set sum each month. However, agreement to pay for operations by fellow members who didnt pay, didnt even have to join and will never be any use to the one who pays makes no sense. People are generally well-disposed toward their fellows and inclined to help when they can, and of course, that no one may prevent them from helping when they are so inclined; add to the fact that one has the right to refuse unwanted help, and you have a package that dominated alternatives. We are more likely to do for people when we are well-disposed rather than ill-disposed. This kind of disposition costs us little after all.

2.

3.

4.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 75
5. (in contradicting Sterbas argument) The rich got where they are through fair means. He has satisfied the conditions that does not interfere with the right of others, thus the poor do not have a right to take anything from them. It has nothing to do with how much the poor needs it rather it is based on the fundamental principle that we live in peace. Welfarism will make everyone a slave to anyone in need. Whether the por would do better in a libertarian society where people have rights to their property, or in a welfare society, in effect where they do not, it is not clear what oour terms of reference would be. But insofar as we can point to real-world cases, certainly the evidence is on the side of libertarians (i.e. maos china) The welfare liberal guarantee is a delusion. All you can guarantee is that the people who are done down will indeed be done down. But as to a guarantee that people who will otherwise not starve is hollow. Absence of starvation is a function fo ample supply and some generous hearts. Only libertarianism actually gets us to the former, and the latter is the only real refuge for those genuinely in need. Concluding note The advantage of liberty is that it leaves the widest possible array of such further involvements open to all who, together with willing others, are ready to take them on. Precisely what makes that possible is the exclusion of arrangements that press unwilling participants in the act. My argument, then, does not presuppose the libertarian scheme of rights, Instead it argues for those rights, by showing that that scheme of rights can be expected to work out better for every reasonable person, if applied uniformly to all, than any alternative scheme.

6.

7.

8.

CONTRACTARIAN - VELASQUEZ SOCIAL CONTRACT THEORY


IMMANUEL KANT The Contractual Basis for a Just Society

Civil Constitution -- It is like any other social contract by which a group of men unite to form a society. However, it is exceptional in nature because it is a union as an end in itself, which they all ought to share and which is thus an absolute and primary duty in all external relationships whatsoever among human beings. This can only be found in a society constituting itself as a civil state. The Civil State is based on the following a priori principles 1. The freedom of every member of society as a human being 2. The equality of each with all the others as a subject 3. The independence of each member of a commonwealth as a citizen Freedom as a human being o Each person must accord to others the same right as he enjoys himself. Each person has the freedom to seek happiness in whatever way as long as he does not infringe upon the freedom of others. o Paternal government v. Patriotic Government

Paternal Government suspends the entire freedom of its subject, who thenceforth have no rights whatsoever, instead they passively rely upon the state to determine how they ought be happy.

Patriotic Government government for men capable of possessing rights, wherein everyone regards the commonwealth as a maternal womb. In this government, everyone is authorized to protect the rights of the commonwealth by laws of the general will, but not submit it to personal use. This right of freedom belongs to each member as each is capable of possessing rights. The equality of each with all the others as a subject o Each member of the state is equal to every other member of the state before the law. Each has equal coercive right, that is, the right to invoke the power of the state to enforce the laws on her behalf. This formal equality is perfectly compatible with the inequality of members of the state in income, physical power, mental ability, possessions, etc. One serves, and the other pays but both are equal subjects before the law.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 76
o o The head of state is exempted from this equality, since the head of state cannot be coerced by anyone else. He alone is authorized to coerce others. Because if he can be coerced, the hierarchy of subordination will ascend to infinity. Further, this equality supports an equality of opportunity: every office or rank in the political structure must be open to all subjects without regard for any hereditary or similar restrictions. CIVIL STATE is characterized by equality in the effects and counter-effects of freely willed actions which limit one another in accordance with the general law of freedom Because all rights consists of restriction in the freedom of others, with the qualification that the freedom of one can co-exist with the freedom within the terms of a general law. This means that everyone is entitled to ONE vote. The number of people entitled to a vote is not based on the size of the property, but the number of property owners.

However, complete unanimity cannot be achieved. Therefore people must be content with a show of majority of votes. The actual principle of being content with majority decisions must be unanimously accepted and embodied in a contract. This is the ultimate basis on which a civil constitution is established. This then is the original contract by means of which a civil constitution can alone be established.

This does mean that such contract exists as a fact. It is in fact merely an idea of reason, for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject, insofar as he can claim citizenship, as if he had consented within the general will. Independence of each member o Independence concerns a citizen being subject to laws he gives himself, i.e. as co-legislator of the laws. Thus if a people under some existing legislation, were asked to make a judgment which in all probability would prejudice its happiness, what should it do? It can do nothing but obey.

For we are not concerned with the happiness of each subject. A "universal principle of right" cannot be based upon happiness but only on something truly universal, such as freedom. The "universal principle of right" Kant offers is thus "Any action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law." There are too many varying ideas on what constitutes happiness. Seeking to find happiness for its subjects is NOT an end to a state but a means to secure the rightful state against external enemies. THE HEAD OF STATE MUST BE AUTHORIZED TO JUDGE FOR HIMSELF WHETHER SUCH MEASURES ARE NECESSARY. The power of the state to put the law into effect is also irresistible and no rightfully established commonwealth can exist without force of this kind to repress all internal resistance.

HARTS POSITIVISM BARETTO

Positivism and the Separation of Law and Morals H.L.A. Hart What is positivism? The insistence on the separation of law as it is, and law as it ought to be (morals). Basically, laws and morals are perceived to be separate, what is legal may not be moral (and vice versa). *Think special laws like traffic laws, really it is not immoral to drive on the left side of the road but it is illegal. Criticism of the separation of law and morals

1st Criticism: The first criticism stems from the Utilitarian doctrines regarding laws that make up the Positivist view these are: 1) That laws and morals are separate, 2) that it is important for an analytical inquiries into the meaning of legal concepts 3) and finally that laws are commands. The criticism mostly attacks the third doctrine on commands, as not all laws are commands (mandatory or prohibitory) some laws confer rights (permissive) Critics erroneously thought that to disprove one doctrine is to disprove positivism. Hart responds to this by stating that the three

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 77
doctrines are separable, that although the third doctrine is weakened by the existence of laws that confer rights. Hart however argues that these doctrines are separable, one may believe and advocate for 1 and 2 without the 3rd. Also, Hart argues that these rules that do not command but confer rights may not necessarily be moral. (i.e. Laws on slavery conferring rights to the master to control her child) Hence, laws (even those conferring rights) may not necessarily be moral. 2nd Criticism: Factual situations arise without ready interpretations, when such penumbra presents itself there is a need for the Judges to interpret to see the aim of the law (in other words interpret in favor of morality). The example in the reading was vehicles will not be allowed in the park the dilemma comes in what constitutes a vehicle? A purely formalistic approach to the question like giving a definition of what is a vehicle for purposes is deemed not intelligent for not taking into account social values or the purpose of the law. Think Article 9 and 10 of the Civil Code, which are in the absence of law rule based on equity and in case of doubt in the interpretation rule in furtherance of Justice. The critics say that for a Decision to be intelligent, it must be based on some conception of what ought to be (or what is moral), and that these aims must be part of the law, hence morals and law are inseparable. Hart refutes this by saying, the aim of the decision may not necessarily be evil. He gives an example during the time of Nazi regime, wherein criticism of the Regime was punishable, upon making a decision the Judge would consider the aim of the law would be to protect the effectivity of its tyranny. The ruling would thus be balancing whether to Illicit fear and at the same time give hope to the victims family in order that they do not rebel. 3rd Criticism: German thinkers were concerned with the problem posed by the existence of morally evil laws. Radbruch before conversion Gustav Radbruch, one of the German thinkers, said that resistance to law was to be thought out by the individual as a moral problem. For Radbruch, a law could not be proven invalid by showing that its requirements were morally evil, or by showing that the effect of complying with the law would be more evil than the effect of disobeying it. Radbruchs conversion During the Nazi regime, Radbruch saw two things: How the Nazis exploited subservience to mere law (the positivist slogan law as law, or Gesetz als Gesetz), and How the German legal profession failed to protest the evils they were required to perpetrate in the name of law. He then concluded that positivism had contributed to the horrors he saw. Radbruchs doctrine Upon reflection, he came to the doctrine that the fundamental principles of humanitarian morality were part of the concept of Recht or Legality, and that no positive enactment or statute could be valid if it contravened basic principles of morality. What does this doctrine mean? It means that 1. Every lawyer and judge should denounce statutes that transgressed the fundamental principles not as merely immoral or wrong, but as having no legal character, and 2. They should not be taken into account in working out the legal position of any given individual in particular circumstances. What does Hart say? Hart says that Radbruch has only half-digested the spiritual message of liberalism. According to Hart, everything Radbruch says is really dependent upon an enormous overvaluation of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: Ought this rule of law to be obeyed?

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 78
on to say that there were two other choices. One was to let the woman go unpunished. The other was to face the fact that if the woman were to be punished, it must be pursuant to the introduction of a retrospective law. To pursue the second choice would have made plain that in punishing the woman, a choice had to be made between two evils: That of leaving her unpunished, or That of sacrificing a principle of morality endorsed by most legal systems. Hart says that when we use the principle of what is utterly immoral cannot be law or lawful, the principle will cloak the true nature of the problems we face, and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that none of them has to be sacrificed or compromised to accommodate another. Direct from the text: If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed. This is a moral condemnation which everyone can understand and it makes an immediate and obvious claim to moral attention. If, on the other hand, we formulate our objection as an assertion that these evil things are not law, here is an assertion which many people do not believe, and if they are disposed to consider it at all, it would seem to raise a whole host of philosophical issues before it can be accepted. Sample final exam answer from ADAPT 2009 4. Is the statement laws may be law but too evil to be obeyed consistent with Harts positivism? Yes. Harts article states that laws may be valid but they are ineffective if such laws are evil. In discussing such he made an illustration of a Nazi woman who wanted to get rid of her husband by telling the Nazi guards that the husband told something foul about Hitler. Upon her trial after the war, the womans defense was that what she did was in accordance with the law at the time she committed it. According to Hart, Nazi laws are one of the major arguments against positivism. Radbruch, the leading antipositivist, states that positivism ushered the evil laws of the Nazis. Hart answered it as discussed earlier. Radbruch, meanwhile, dismisses the idea that laws evil laws may still be held as valid. His formula states that: extreme injustice is no law. Such law ceases to be part of the system when it meets the criteria of intolerability.

(Translation: According to Hart, Radbruch assumes that declaring whether a rule is valid or not answers the question of whether it ought to be obeyed or not.) Hart says that the truly liberal answer to any sinister use of the slogan law is law or of the distinction between law and morals is, Very well, but that does not conclude the question. Law is not morality; do not let it supplant morality. What happened to Radbruchs doctrine? After the war, Radbruchs conception of law as containing in itself the essential moral principle of humanitarianism was applied, in practice, by German courts, in certain cases in which local war criminals, spies, and informers under the Nazi regime were punished. In these cases, the persons accused claimed that what they had done was not illegal under the laws of the regime in force at the time these actions were performed. The response to this was that the laws upon which they relied were invalid, as contravening the fundamental principles of morality. The case of the woman who wanted to get rid of her husband Hart cited the case of the woman who got rid of her husband by denouncing him to authorities for making insulting remarks about Hitler. As punishment, he was arrested and sent to the front. The wife was charged with illegally depriving him of his freedom; she pleaded that her husbands imprisonment was pursuant to Nazi statutes, and that she had thus committed no crime. The court, however, held that she was guilty even if her husband had been sentenced pursuant to a statute, because the statute was contrary to the sound conscience and sense of justice of all decent human beings. Harts analysis Hart says that in order to achieve the decision in the cited case, it was necessary for the court to declare a statute that had been established since 1934 as one that did not have the force of law. The wisdom of this choice must, at the very least, be doubted. Hart went

DWORKINS INTERPRETIVISM - ROTAP

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 79
1. In general - A critic of the positivist model as represented by HLA Hart's orthodoxy. While his theories have an affinity for natural law, he cannot be firmly associated with the perspective. He is his own man. He also criticized Rawl's theory of justice by pointing out the deficiencies and inconsistencies of the original position and veil of ignorance with actual practice and circumstances. - He is mostly identified with the "school" of jurisprudence known as "interpretevism. 2. As critic of positivism Criticisms of Hart - He does not agree with the positivist assertion that law consists of rules (Hart) with gaps in those rules being filled by judicial discretion. If you remember Hart's discussion, it was about the law being a "marriage" of primary (fundamental assertions, obligations. substantive ika nga.) and secondary (rules for remedy and change. procedural.) rules. - He believes there is a difference between rules and principles. He argues that in Hart's model, principles or reasoning using principles cannot be accommodated. That is why it is necessary therefore to resort to the idea of "judicial discretion" to explain the other facets of the law that cannot be accounted for by a "rule-based" theory. - Dworkin also rejects the idea of "rule of recognition" by saying that such rules are inherently impossible to use or apply because the standards used for such a rule are highly arbitrary and ever-changing. 3. The Judge: Principles and policies - Dworkin argues that principles relate to rights and policies are about goals. Judges therefore that appear to rule based on policy considerations are also likely weighing competing rights and deciding on the possible effects of such decisions on those rights and issues. - Dworkin's concept of the law is therefore a gapless universe: Judges are always constrained by the law. There are no gaps. Even in novel cases and situations, there are certain standards (principles) which judges are obligated to follow. There is always a right answer. Judges are NOT DEPUTY LEGISLATORS. - Two reasons for the assertion that judges cannot deputy legislate: First, it offends the democratic notion of "elected" governing officials. Judges are not elected and one cannot simply substitute his will over the people. Judges are subject to constraints. Second, retroactive application of a judges new law will punish the losing party, not because he has violated some duty he had, but rather a new duty created AFTER the event. Hard cases versus Weak ones - Hard cases are what we would commonly describe as "novel" and subject to intense debate and argumentation as to the possible ways to resolve the issues or understand the applicable law/s. For Dworkin, hard cases are not that extraordinary in the sense that they blur the lines and boundaries of legal reasoning and accepted standards and thus require arbitrariness or leeway. Hard cases are important because they test fundamental principles. - For Dworkin, there is a misunderstanding of the idea of judicial "discretion." Discretion of the judge is not an unabashed imposition of the will and understanding of the law by the judge. In exercising discretion, the judge is still faced with constraints of judgements and appreciation of the facts and circumstances inside his head and thus, makes decisions still within the bounds of some standard or principle he has applied. SIMPLE CONCLUSION: JUDGES MUST ALSO CONSIDER NON-LEGAL PRINCIPLES IN DECIDING CASES. IT IS NOT ALL ABOUT LEGAL RULES AND LEGAL STANDARDS. THERE ARE NO JUDICIAL LEGISLATORS WITH UNLIMITED DISCRETION IN DECIDING HARD, NOVEL CASES. THERE ARE STILL PRINCIPLES THAT BIND THE JUDGE IN HIS DECISION-MAKING AND HE MUST EVALUATE AND USE THEM IN REACHING A CONCLUSION. TO SOME DEGREE, DECISION-MAKING THUS BECOMES MORAL AND POLITICAL. 4. Dworkin and Interpretation Constructive Interpretation - Central idea of Dworkin: Engage in CONSTRUCTIVE INTERPRETATION of legal practice. This method is used for interpreting social practices, texts and works of art. Distinctive feature: ARGUMENTATIVE. Two ways of studying this is: External point of view of the sociologist or historian and the internal point of view of those whow make the claims. To understand legal practice,

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 80
he asserts that it is important to grasp the internal point of view. - An example he presents is the "rules of courtesy" of an imagined community. The interpretative attitude will then not only take into consideration the sociological/historical aspect of the practice by tracing the origin, taking note of societal impulses and other "external" factors, it shall also put forward questions and consideration on the value and purpose of the practice as appreciated by those who follow it. It analyzes why and how the "people" have imposed MEANING on the institution/practice. It must then be analyzed and seen in the best light possible. - Two questions/criticisms: First, Dworkin apparently ignores the fact that judges themselves are socially situated individuals who interpret the law for a certain purpose and that they precisely use sociological and ideological predispositions. These "external" considerations are being dismissed by Dworkin as cliques that cannot tell us anything significant about the law. Second, why look at social practices in the "best" light? Essential point: this approach is one way of understanding culture, but it is NOT the only one. Three Stages of Interpretation - Pre-interpretative stage: Participant identifies rules and standards that constitute practice. The same stage in literary interpretation is the indentification of the text. - Interpretative stage: Interpreter settles on some general justification for the main elements of the practice identified in the first stage. This is the most important because this is where the justification and value is identified and appreciated. He must give a proposal that is consistent with the identified practice and choose and justification that shows it in its best light. - Post-interpretative or reforming stage: The participant adjusts his sense or understanding of the practice so as to better serve the justification he has accepted/chosen in the preceding stage. What is "in its best light?" - Dworkin was not clear about this. There is one passage though that says that it is central for his anti-positivist stance to consider that moral argument is essential to legal argument. One interpreter: idea of best light is essentially, "moral light." Question then: Is this just then an assertion of the status quo? AN affirmation of what considered acceptable? Is the definition bourgeois? 5. Law as Integrity Definitions: Justice, Fairness and Integrity - This is the concept that Dworkin put forward as the one that shows legal practice in its best light. He accepts the two political ideals that he considers as accepted: justice and fairness. Justice: decisions... to distribute material resources and protect political liberties so as to secure a morally defensible outcome. Fairness: a matter of finding political procedures... that distribute political power the right way. Integrity is the third political ideal. - Integrity: "requires government to speak with one voice, to act in a principled and coherent manner toward all its citizens, to extend to everyone the same substantive standards of justice or fairness it uses for some." It is almost like a principle of equality or equitable considerations. Principles and standards must be used and applied in a manner that is consistent and coherent. Example and discussion he used: Checkerboard solutions. A checkerboard statutes is one that is inconsistent and only justified on the grounds of a supposedly "fair" allocation of political power between different moral parties. Example: Abortion is contentious. Some want it. Some don't. Solution: Permit those born in even-numbered years and not those born on even-numbered. This may be justified as "fair" but abhorrent. Not all are allowed to abort (to satisfy those who are against) but those who meet the criteria are allowed (to concede to those who support.) A state that uses such checkerboard solutions lacks integrity according to Dworkin. - note: Dworkin accepts that some checkerboard solutions may actually show integrity. He also admits that integrity may not always be more important than justice and fairness. Occasionaly, checkerboard solutions may even be justified.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 81
6. Integrity in Adjudication - Principle: Integrity "instructs judges to identify legal rights and duties... on the assumption that they were all created by a single author -the community personifiedexpressing a coherent conception of justice and fairness. A judge will then seek a principle that will "fit" and justify some part of the legal practice that will provide an attractive way to see the consistency of principle that integrity requires. Chain Novel Example: The Political, Not Mechanical Point - Example Dworkin uses the idea of the chain novel to illustrate the idea of "fit" in adjudication. In this example, a number of novelists agree to write chapters for a novel. Every subsequent novelist that adds something will be constrained by the contribution of those that preceded him. The constraints increase as more contribute successively. Problematic idea: Fit as interpretive. The second novelist will interpret in many possible ways the meaning of the first, and then proceed to write based on his understanding and so on. Argument then is the need for the external point of view (sort of objective lens) that Dworkin earlier dismisses. - Essential Dworkin point: What constrains interpretation in not historical legal material in some objective sense, but the judges "convictions" about fit. These are POLITICAL, NOT MECHANICAL. On the "Right Answer" - Dworkin maintains that the process of adjudication inherent in his theory of law as integrity yields right answers to questions of law. It does not follow that if something cannot be demonstrated that it cannot be right. It is not right to say that right answers do not exist just because they cannot be proved or demonstrated. - How about judges that have different convictions? Different right answers, then? Dworkin asserts that "law as integrity" does not produce "objectively" right answers. There are no right answers in a "transcendental reality" or plane out there. - So in what sense are they right if not objectively? They are right because the judge as a participant in legal practice experiences them as right. There are right answers but also entertains possibility of disagreement of judges as to what those right answers are. 7. Integrity and Legitimacy: Idea of Associative Obligations - Dworkin maintains that any argument for legitimacy must be able to account for the fact that political obligations are not consensual. He rejects social contract ideas and variants such as Rawls original position. Political obligations are a type of "associative obligation". Associative obligations: Special responsibilities social practice attaches to membership in some biological or social group. In other words, you perform, do, concede, follow and practice because you are part of a group and being part of it attaches special responsibilities. You do the practice of digest/summary-making because it is a special responsibility attached to being part of the Dlock Universe. - Associative obligations are special, confined to the members of the group and nonconsensual because we do not have the freedom to choose these obligations that we owe our friends, family (and in this case, dlockmates.) Communities' special practices give rise to genuine obligations that can be explained by the notion of reciprocity and showing of roughly the same/equal concern for each other in the community. Critique: problem of equal concern. Example can be found in p.731 of the reading. - As such, a "true" political community that endorses the ideal of integrity can give rise to a genuine associative community with associative obligations and claim moral legitimacy. Obligation is in the name of fraternity, rather than bare power. Questions posed: Sketchy? Not yet convincingly applied to political obligations, only in terms of family and friendship. In the political community, will this be viewed as a form of coercion? Is it really based on reciprocity? Right and Wrong answers - Can a right answer be at the same time a wrong answer? Hercule's dilemma is presented in the last portion of Law's Empire. It concerns an interpretation concluding that allowing distinctions between rights of adults and children must be outlawed. He feels that it is right but still politically unfair because of the observation/consideration of communities that

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 82
recognize such distinctions as proper and fundamental within their systems. FROM DAVID'S "DUMBED DOWN" POST: INCLUDED FOR CONVENIENCE TAKING RIGHTS SERIOUSLY Dworkin argues that positivism gives judges too much of a free reign in interpreting law in hard cases. Hard cases are those cases in which a judge must interpret a law in circumstances with little or no precedence, as well as cases which are politically charged and in which the law is ambiguous. The reason positivists give judges too much discretion in these cases, says Dworkin, is because of their separation of legal rules from non-legal standards. Positivists believe that the legality and the validity of law is unrelated to its desirability and morality. Therefore, in hard cases in which the law is ambiguous or their is no clear precedent, the judge must appeal to extra-legal standards in order to make a ruling, such as a judges political or moral ideals. Dworkin feels as though this gives judges too long of a leash. He claims to solve this problem by re-construing the nature of law to include principles traditionally thought of as extra-legal principles. For example, a judge may look to historical precedent, and observe an over-arching pattern to legislation and adjudication, and from this pattern articulate a principle on which he should base his present ruling. Because the judge is bound by these legal principles, his discretionary leash is shortened. Thus, it seems that although Dworkin claims to restrict judicial discretion, he encouraged it even more by claiming that judges were not required to adhere to written law, but to unwritten principles they can discern from the overall body and history of law. Letwin continues, Dworkin thus moves from an apparently technical discussion of hard cases to the conclusion that it is normal and desirable for legal decisions to be political decisions. As indicated by the title of his first publication, these legal principles on which Dworkin believes judges should base their rulings are largely articulated in the rhetoric of legal rights and equality. Letwin explains: In fact, as Dworkin himself says bluntly, he is out to defend equality, which, he maintains, cannot be reconciled with liberty. The idea of a right to liberty is a misconceived concept that does dis-service to political thought, Dworkin declares. The idea of a right to liberty creates a false sense of a necessary conflict between liberty and other values when social regulation, like the busing program, is proposed. The law ought to be based, Dworkin says, on the principle of equal concern and respect, and he regards the requirements of this principle as so self-evident that he sees no need to defend it. A MATTER OF PRINCIPLE Dworkings second publication is dedicated more to the way in which judges interpret the law and discern the overarching legal principles he espouses. Consider, Dworkin said, a critic interpreting a work of art or literature. The way he interprets the work of art will largely depend on what he sees as important in not only art, but the world around him. Because of this, according to Letwin, we cannot separate interpreting a work of art from evaluating it. Interpretation has normative presuppositions. Dworkin goes even further, and claims that the artist can create nothing without interpreting as he creates, [and the critic] creates as he interprets. Letwin continues, By equating normative beliefs with every sort of presupposition, Dworkin makes it impossible to distinguish interpretation from evaluation and thus converts interpretation into a synonym for evaluation. Dworkin used these facts to justify the possibility that judges may seem to create new laws as they interpret law. For Dworkin, adjudication is likened to producing a novel by a chain of authors. Just as each author has to construct a unifying conception of what his predecessors have written, so the judge has to determine what the point or theme of the practice so far, taken as a whole, really is. As Dworkin argued in Taking Rights Seriously, what authors have written before can be pieced together into an overarching plotline, and the judge must rule accordingly. As there are many possible interpretations of the story so far, each judge must choose an interpretation of the story that he determines as a sounder principle of justice. Again, as he argued in his first publication, Dworkin believes that the sounder principle of justice that is often ignored is the principle of equality. Letwin says, Not many conservatives would agree, but according to Dworkin conservatives value the ideals of liberty over those of equality, and believe that it is possible to uniformly determine the ideals of a good life and therefore to expect the government to promote them. As liberals claim no such pretensions to the proper mode of life, they recognize the prominence of the moral principle of equality, that human beings must be treated as equals by their government, over that of liberty. From his principle of equal concern and respect, the liberal derives a number of practical and inescapable conclusions. Unlike the conservative, he would qualify the decisions of the market, as well as rights to property and freedom of contract, in order to produce a more equal distribution of wealth. Where people have

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 83
different talents and handicaps and inherit more or less wealth, It is obviously obnoxious to the liberal conception to allow one man to own more because his father had superior skill or luck. The liberal therefore supports government intervention for the redistribution of goods. And if he finds that an adequate distribution cannot be achieved within a capitalist economy, the liberal would be forced to reluctantly substitute socialist for market decisions over a large part of the economy. That the written law may contradict the decisions of a judge does not concern Dworkin so much as whether judges decisions meet the demands of over-arching legal principles. Dworkin opposes what he calls a rule book conception of law, which, according to Letwin, he describes as the belief that the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all. The government as well as ordinary citizens must play by these public rules until they are changed, in accordance with further rules about how they are to be changed, which are also set out in the rule book. Dworkin explicitly said, My point was not that the law contains a fixed number of standards, some of which are rules and others principles. Indeed, I want to oppose the idea that the law is a fixed set of standards of any sort. Instead, he proposed his rights conception of law. Each individual has moral duties to each other and rights against the government, and the judge must rule according to these duties and rights, without giving undue preference to the written verbage of the law. According to Letwin, By abandoning the rule book conception and allowing, indeed encouraging, the political decisions required by his rights conception, Dworkin plainly rejects the traditional insistence on the separation of powers between judges and legislators. Dworkin contends that the rule-book conception of law places too much emphasis on liberty rather than equality, and he argues that liberty is not a right, but should always give way to equality, and that injustice consists wholly in a denial of equality, not liberty. LAW"S EMPIRE Dworkins third publication is less radical than his previous two. In fact, he even contradicts many of the claims he had previously made. For example, he made the opposite claim with regards to the Supreme Courts decision on the Fugitive Slave Act. He said, If a judges own sense of justice condemned that act as deeply immoral . . . he would have to consider whether he should actually enforce it on the demand of a slave owner, or whether he should lie and say that this was not the law after all, or whether he should resign. This statement shows much more respect for the written law than his previous claim that the judges should have simply disregarded the law. According to Letwin, Dworkin even goes so far as to deny that he has any quarrel with the view of most laymen, which is also the anthem of the legal conservative, that The law is the law and that It is not what judges think it is, but what it really is. Their job is to apply it, not to change it to fit their own ethics or politics. This view, read word by word, Dworkin pronounces as nothing controversial. And he condemns activism in constitutional adjudication on the grounds that justices should enforce the Constitution through interpretation, not fiat, and that their decisions must fit constitutional practice, not ignore it. While these statements imply that Dworkin has renounced his earlier claims, the overall message of his third publication is the same as the first two, but simply presented in more appealing rhetoric. He presents his theory of law as integrity. In order for people to see law as legitimate, law has to be coherent, and this means that law must coincide with the overall voice of the overarching principle. Letwin explains that in Dworkins view, the coherence of the law becomes synonymous with the state speaking with a single voice, with seeing the law in terms of a single principle, or as the work of a single author. This does not mean that a judge is bound by precedence; he may depart from the written law if doing so will satisfy the demands of principle that the written law or precedence does not.

LIBERAL WELFARE SOCIETIES - VELASQUEZ

IMMANUEL KANT The Contractual Basis for a Just Society

Civil Constitution -- It is like any other social contract by which a group of men unite to form a society. However, it is exceptional in nature because it is a union as an end in itself, which they all ought to share and

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 84
which is thus an absolute and primary duty in all external relationships whatsoever among human beings. This can only be found in a society constituting itself as a civil state.

The constitution of a Civil State is based on the following a priori principles 1. The freedom of every member of society as a human being 2. The equality of each with all the others as a subject 3. The independence of each member of a commonwealth as a citizen Freedom as a human being o Each person must accord to others the same right as he enjoys himself. Each person has the freedom to seek happiness in whatever way as long as he does not infringe upon the freedom of others. o Paternal government v. Patriotic Government

Paternal Government suspends the entire freedom of its subject, who thenceforth have no rights whatsoever, instead they passively rely upon the state to determine how they ought be happy.

Patriotic Government government for men capable of possessing rights, wherein everyone regards the commonwealth as a maternal womb. In this government, everyone is authorized to protect the rights of the commonwealth by laws of the general will, but not submit it to personal use. This right of freedom belongs to each member as each is capable of possessing rights. The equality of each with all the others as a subject o Each member of the state is equal to every other member of the state before the law. Each has equal coercive right, that is, the right to invoke the power of the state to enforce the laws on her behalf. This formal equality is perfectly compatible with the inequality of members of the state in income, physical power, mental ability, possessions, etc. One serves, and the other pays but both are equal subjects before the law. o The head of state is exempted from this equality, since the head of state cannot be coerced by anyone else. He alone is authorized to coerce others. Because if he can be coerced, the hierarchy of subordination will ascend to infinity. o Further, this equality supports an equality of opportunity: every office or rank in the political structure must be open to all subjects without regard for any hereditary or similar restrictions. o CIVIL STATE is characterized by equality in the effects and counter-effects of freely willed actions which limit one another in accordance with the general law of freedom Because all rights consists of restriction in the freedom of others, with the qualification that the freedom of one can co-exist with the freedom within the terms of a general law. o This means that everyone is entitled to ONE vote. The number of people entitled to a vote is not based on the size of the property, but the number of property owners.

However, complete unanimity cannot be achieved. Therefore people must be content with a show of majority of votes. The actual principle of being content with majority decisions must be unanimously accepted and embodied in a contract. This is the ultimate basis on which a civil constitution is established. This then is the original contract by means of which a civil constitution can alone be established.

This does mean that such contract exists as a fact. It is in fact merely an idea of reason, for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject, insofar as he can claim citizenship, as if he had consented within the general will. Independence of each member o Independence concerns a citizen being subject to laws he gives himself, i.e. as co-legislator of the laws. Thus if a people under some existing legislation, were asked to make a judgment which in all probability would prejudice its happiness, what should it do? It can do nothing but obey.

For we are not concerned with the happiness of each subject. A "universal principle of right" cannot be based upon happiness but only on something truly universal, such as freedom. The "universal principle of right" Kant offers is thus "Any action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law." There are too many varying ideas on what constitutes happiness. Seeking to find happiness for its subjects is NOT an end to a state but a means to secure the rightful state against external enemies. THE HEAD OF STATE MUST BE AUTHORIZED TO JUDGE FOR HIMSELF WHETHER SUCH MEASURES ARE NECESSARY. The power of the state to put the law into effect is also

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 85
irresistible and no rightfully established commonwealth can exist without force of this kind to repress all internal resistance.

JOHN RAWLS, A Theory Of Justice Principles of Justice o First Principle: Liberty Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. o Second Principle: Wealth (Difference Principle)

In order for any change to be accepted as an improvement, it must help the least advantaged representative person. Social and economic inequalities are to be arranged so that they are both: 1. to the greatest benefit of the least advantaged, consistent with the just savings principle, and 2. attached to offices and positions open to all under conditions of fair equality of opportunity. Representative persons: prototypical members of any identifiable group (e.g., women, high school students, citizens of Haiti, etc.).

Priority Rules o Rawls explicitly addresses the fact that there will be situations where these two primary principles will be in conflict with each other. Rather than compromise between them in such cases, he takes the position that there is a specific priority. o The Priority of Liberty The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty. The Priority of Justice over Efficiency and Welfare o The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases: (a) an inequality of opportunity must enhance the opportunities of those with the lesser opportunity; (b) an excessive rate of saving must on balance mitigate the burden of those bearing this hardship. The Veil of Ignorance o Rawls supposes that a (virtual) committee of rational but not envious persons will exhibit mutual disinterest in a situation of moderate scarcity as they consider the concept of right: general in form universal in application publicly recognized final authority prioritizes conflicting claims o Rawls claims that rational people will unanimously adopt his principles of justice if their reasoning is based on general considerations, without knowing anything about their own personal situation. Such personal knowledge might tempt them to select principles of justice that gave them unfair advantage rigging the rules of the game. This procedure of reasoning without personal biases Rawls refers to as "The Veil of Ignorance."

RONALD DWORKIN: Hypothetical Contracts And Rights (critique on Rawls Theory)

Rawls Theory of Justice is a hypothetical contract which does not supply an independent argument for the fairness of enforcing its terms. This hypothetical contract is not just a weak form of contract, but rather, it is NOT a contract. o The Original Position argues that because a man would have consented to certain principles if asked in advance, it is fair to apply those principles to him later, under different circumstances when he does not consent. But in many cases this is a bad argument.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 86
It could also be argued that the original positions shows that the two principles are in the best interest of every member of the community and that it is fair to govern in accordance with them for that reason. o However, Dworkin distinguishes between two sense in which something might be said to be in a persons interest: Antecedent interest to make a choice that offers the best odds Actual interest to make a choice that is the best option. o The Original Position uses the idea of an antecedent interest. It is not based on actual interest. When the veil of ignorance is lifted, some will discover that another principle should have been used. The fact that a particular choice is in the interest of a person at a particular time, under conditions of great uncertainty is NOT a good argument for the fairness of ENFORCING that choice against the person later at conditions of much greater knowledge. o Rawls assumes that men would inevitable choose conservative principles as a rational choice for selfinterested persons. However, the original position forgets actual men who, aware of their own talents, might prefer less conservative principles.

RICHARD MILLER Rawls and Marxism This critique on Rawls operates from a basic assumption that Marxist ideas on social conflicts are correct. Generally it states that the claims of Rawls Theory of Justice presuppose a relatively low estimate of the extent and consequence of social conflict. Basic Review on Rawls: Ideal contractualism principles concerning justice are seen as agreements that would be made by rational deliberants seeking to pursue their interests behind a veil of ignorance which excludes knowledge of what ones place in society and what ones special interests are. o The text implies a UNIVERSAL commitment to uphold the duty to realize principles of justice. This commitment is central to Rawls theory. o Rawls theory argues for a commitment to uphold the difference principle in a society in which the principle has already been stably realized and everyone has the psychology to support it. Miller argues that certain aspects of Marxism preclude this requisite agreement to uphold the difference principle. It would even be downright impossible if the societies have: o There is no social arrangement acceptable to both best-off class and worst-off class. Marxist claims that no social contract exists which both classes will agree to, unless it is a result of class struggle or tactical retreat to preserve long-term advantages. Improvements to the position of the worst-off class cannot be made by universal appeals to justice. Even when such sense of justice exists, no appropriate consensus can be made to whether it has been fulfilled (different classes have different views on what fairness entails e.g. effect of reduction of working hours). o The best-off class is the ruling class In such a situation, the best-off class has control over all major institutions. o The best-off class need for wealth and power is more acute than the rest of society. On the derivation of the Difference Principles o An immediate application of difference principle is impossible If Marxist social theory is right, someone in the original position would foresee that the difference principle may be intolerable for him, if he turns out to be a typical member of the dominant exploitive class. They he could not accept this commitment as something he can live up to. Also, the dominant class controls political and ideological institutions. In such a situation, the rewards of exploitation for the ruling class outweighs the cost to maintaining cooperation in an exploitative society. If someone in the original position foresees that if he turns out to be the best-off, such difference principle will not benefit him. o But even if the best-off class will be willing to commit based on long-term advantage, it will only be allowed using a gradual course of development, requiring a narrowing off the gap between best-off and worst off. BUT, there are certain limits to this. The best-off might think that the narrowing is too fast, and the worst-off will be too slow. Eventually the best-off will think that there are limits to what it can give up. The best-off can only give so much. And the worst-off can only have so little. These ranges of tolerability CANNOT intersect. Even if gradual development is chosen it is only a means to postpone intolerability. History has shown that increasing erosion of status, wealth and power (on the part of the bestoff), and increasing need to have more rights (on the part of the worst-off) have erupted into wars and conflict.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 87

Also, the best-off class capacity for self-deception is limitless. Their long term non-moral interests do not coincide with the moral principles he put forward, but he does it without conscious hypocrisy. In short, he will always justify his actions based on some view of what he believes is good, despite appeals to the contrary.

Chapter 3 Institutions and Persons

In this chapter, AmartyaSen discusses the interdependence of institutions and behavioral patterns in achieving justice in society. He focused particularly onRawls principles in illustrating the role of the two in advancing justice and their relevance to contemporary economies and political philosophy. Note that behavior, behavioral patterns, and other terms making reference to behavior in this chapter does not simply refer to the laymans definition of behavior. The author seems to use the term here in some instances to refer to culture, societal norms, and other human factors that are usually left out when talking about the choosing and the setting up of institutions.

Ashoka&Kautilya The author starts the chapter with anecdotal references to two Indian historical figures, Ashoka, the emperor of India in the third century BC and author of numerous inscriptions on good and just behavior and Kautilya, who was the principal advisor to Ashokas grandfather and author of a much-celebrated political treatise. AmartyaSen used the two historical figures as representations of two perspectives in advancing justice in society.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 88 Ashoka represented the perspective that gave importance on human behavior with his optimistic belief that justice in society could be achieved through the voluntary good behavior of the citizens themselves, without being compelled through force. Kautilya represented the institutional perspective that gives premium on restrictions and prohibitions on behavior as necessary restraintsto bring about good results. His institutional approachdoubted and gave little concession to peoples capacity for doing good voluntarily. Many economists today share this particular view. AmartyaSen argues that both perspectives are incomplete in themselves, and both need attention when thinking of ways and means of advancing justice in society.But since the institutional perspective does not lack in attention and followers, the chapter can be read as an argument for a more thorough attention on behavior when talking about achieving justice in society.

The Role of Behavior in Institutional Choice To illustrate how behavior plays an important role in institutional choice, the author puts forward Rawls second principle of justice: Social and economic inequalities are to satisfy two conditions: first they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit if the least advantaged member of society. The author argues that in both conditions, the need for taking into consideration behavioral patterns emerges. In the first condition of setting up non-discriminatory institutions, the question of what kind of selection criteria would be effective given behavioral characteristics, and so on can come up. In the second condition, different institutional arrangements can be chosen that will provide the greatest benefit to the least advantaged and it is important, the author argues, that we involve the behavioral norms that are standard in a particular society as a criterion for the selection process.

The Role of Behavior Once the Chosen Institutions Have Been Put in Place A second issue between behavior and the choice of institutions concerns Rawls presumption that once the social contract has been arrived at (meaning the institutions have been chosen), people would abandon any narrow pursuit of self-interest and follow instead the rules of behavior that would be needed to make the social contract work. Rawls outlines his idealized transcendental vision for institutions and behavior:

1. Citizens have the capacity to acquire conceptions of justice and fairness and a desire to act as those conceptions require 2. When they believe that institutions and social practices are just or fair, they are ready and willing to do their part as long as there is assurance that others will do their part as well

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 89

3. If other people do strive to do their part, citizens tend to develop trust and confidence in them 4. this trust and confidence becomes stronger and more complete as the success of the cooperative arrangement is sustained 5. this trust and confidence also becomes stronger when the basic institutions framed to secure our fundamental interests are more firmly and willingly recognized

Though the author recognizes the vision as illuminating and inspiring, he argues for a realistic reading of behavioral norms in the context of setting up institutions. Demanding more from behavior than could be expected to be fulfilled would not be a good way of advancing the cause of justice.

The Need for Countervailing Institutions The author takes note of John Kenneth Galbraiths insight on the need for countervailing institutions against the negative influence of unchecked power. Galbraith argues for the importance of distinct social institutions and he credits the success of American society to their system of separation of powers that check and balance the force and possible domination that might otherwise be exercised by one institution. Conversely, he blames the failure of one-party states such as the USSR to the lack of countervailing institutions.

Institutions as Foundations The author argues that though institutions cannot but be a central element when talking about advancing justice, we have to seek institutions that promote justice rather than treating the institutions as themselves manifestations of justice.
(In other words, when talking about advancing justice in society, we should not treat institutions as ends in themselves that will realize justice. Rather they should be seen as the means by which justice can be advanced in society.)

Institutions themselves can sensibly count as part of the realizations (of advancing justice in society) but they can hardly be the entirety of what we need to concentrate on, since peoples lives are also involved. This particular argument is put forth by the author as an opposition against the long tradition in economic and social analysis of identifying the realization of justice with the right institutional structure. The author criticizes the tendency of institutionalist fundamentalism (the view that regards the right institutions as the end-all be-all when it comes to advancing justice) of leaving everything to the choice and setting up of the right institution

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 90 but failing to question or assess the status of the institutions and their outcomes once they have been chosen and set up. It is with these arguments that the author parts ways with the institutional approach to the theory of justice. In his conclusion he states that we can never simply hand over the task of justice to social institutions and social rules that we see exactly as right and rest there and be free from further social assessment. To ask how things are going and whether they can be improved is a constant and inescapable part of the pursuit of justice.

On Natural Law: At some periods, natural law appealed to the religious and supernatural. In modern times however, it has formed an important weapon in political and legal ideology. It has afforded a moral justification for existing social order. By arguing what is the law based on a higher law dictated by reason and so is also what the law ought to be, positive law is thought to acquire sanctity that puts it beyond question. The idea of natural rights similarly had its origin in the conservative forces anxious to sanctify property (symbol of existing order) as the fundamental human right overriding even the right to life itself. What is Natural Law Definitions vary but what remained constant is the essence of natural law which may be said to lie in the constant assertion that there are objective moral principles which depend upon the

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 91 nature of the universe and can be discovered by reason. These principles constitute the natural law. Obstacles to Natural Law 1. Whether moral propositions can be derived from propositions of fact, whether an ought can be deduced from an is Ans: If it is natural for man to act in a particular way, then he ought morally to act that way. 2. If someone has free will, how can be obligated to do anything? Ans: Natural law is binding because it is will by God. It was willed by God because it is that which is rationally good (Suarez and Grotius). 3. Are natural laws self-evident? (for example, statements like slavery is wrong or killing is wrong may be self-evident to us but not to other societies). Ans: While the ideal of justice is absolute, its application must vary with time, place and circumstance. But we must not overlook the fact that one of the reasons for variability of application are differences in moral attitude. The Greeks did not think slavery was wrong: we do. In this case, we must concede the attempt to construct objective norms and values. Attractions of Natural Law There are more important obligations, higher ideals, than obedience to the positive laws of the State. This raises 3 problems: 1. The problem of defining injustice. Ans: For Aquinas, the force of a law depends on its extent of justice according to the rule of reason. Consequently, every human law id derived from the natural law, but if any point it departs from the law of the nature, it is no longer a law but a perversion of the law. Injustice may also be done by not following the law and by applying it unfairly or arbitrarily. 2. The question of who decides whether a law is so flagrant a breach of principles of justice as not to merit the appellation of a law. Is this left to everyones conscience or to some specified professional? Ans: If the basis for valuation is reason, it is difficult to deny this decision to anyone. 3. The consequences of deciding a law should not be regarded as a law Ans: A perversion of law did not bind the moral conscience of man and could be ignored (Aquinas). The good citizen may be morally required to conform to [an unjust stipulation] to an extent as necessary to avoid weakening of the law and the legal system as a whole. However, since the ruler should repeal such law rather than enforce it, he has no right to expect conformity to it (Finnis). Greek Origins - Plato, by his idealist philosophy laid down the foundations for much of subsequent speculation on natural law themes but he had nothing to say on natural law as such. His Republic was based on the substitution for law of the philosopher king, who could attain absolute justice by consulting the mystery locked in his own heart, which partook of the divine wisdom but remained uncommunicable to lesser mortals. - Prior to the Stoics, nature had meant the order of things. With the rise of the Stoics, nature became associated with mans reason. When man lived according to reason, he was living naturally. To them, precepts of reason had universal force. They stressed on the ideas of individual worth, moral duty, and universal brotherhood, and though in the early days theirs was a philosophy of withdrawal enjoining conformity to the universal law upon the select few of wise men alone, in its later development, stress was placed on laying down the law for all men.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 92 Jus Gentium3 - Cicero defines natural (true) law as the right reason in agreement with nature. He contended that positive laws, which contravene natural law should be struck down (e.g., law legalizing adultery). - Against the intellectual background of Stoicism, the Romans developed a law of nature dichotomized by its theoretical and practical aspects. Theoretical jus gentium sees natural law as higher law while practical jus gentium referred to pragmatic uses of law. Medieval period - Throughout the Middle Ages, the theology of the Catholic Church set the tone and pattern of all speculative thought. - Two principles, which animated medieval thought: (1) unity derived from God, and involving one faith, one church and one empire, and (2) the supremacy of law, not merely man-made. - Thomas Aquinas divides law into four categories. Lex aeterna (divine reason known only to God and the blessed who see God in his essence), Lex Divina (law of God revealed in the Scriptures), Lex naturalis (consists of participation of the eternal law in rational creatures and therefore intuitively known and knowable), Lex humana (positive law, which must be virtuous, necessary, useful, clear and for the common good). The aforementioned categories must be understood, as a unified concept. Renaissance, Reformation and Counter-reformation - The Renaissance led to an emphasis on the individual and free will and human liberty and rejection of the universal collective society if medieval Europe in favor of independent national states. - Machiavelli examined human institutions without regard for divine prescriptions, and in light of naked expediency. - Natural law though eclipsed was later on revived by Thomism, the principal advocates of which are Vitoria and Suarez. These thinkers contended that our knowledge of the principles of natural justice was said to be wholly independent of any knowledge of revelation. It was not possible to neglect the law of nature since all men from the beginning of creation have in fact been subject to it. - Suarez, in a departure from Aquinas thinking argued that jus gentium differed from natural law and is actually straightforwardly a case of human positive law. It followed that private property justified as part of the law in Thomist theory, had no further basis than the laws men made for themselves. - Locke escaped from Suarez awkward conclusion by arguing that the right to hold property was a right of nature and not a mere privilege from positive law. - The social contract ideologies associated with Hobbes, Locke and Rousseau can also be traced to 16th century Thomist thought. The concept of consent was invoked to explain how it is possible for a free individual to become the subject of a legitimate state. - A question which Counter-Reformation Thomist thinkers addressed was whether the commands of a human sovereign were always binding. Lutherans argued that the commands of an ungodly ruler could never be binding in a court of conscience. The Thomists response was essentially what Bellarmine explained: anyone who sets aside either the natural, the positive, the divine or the human law, must in every case be sinning against the eternal law of God. Grotius and International Law - The secularization of natural law is usually held to begin with Grotius who asserted that natural law would subsist even if God did not exist (etiamsi daremus non esse Deum). - According to Finnis (in his analysis of Grotius), what Grotius was claiming is that what is right or wrong depends on the nature of things, and not on a decree of God, but the normative significance of moral rightness depends fundamentally upon there being a decree expressing
3

Literally means law of nations or some interpret it as law of the world. In the context of natural law, jus gentium is understood as the law that natural reason establishes among all mankind and is followed by all peoples alike.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 93 Gods will that the right be done. The significance of Grotius thought is in a shift of emphasis towards the natural reason of man. - Grotius main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation-states. The sovereigns of every state according to him were bound by natural law. The linkage with natural law to his discourse is however unclear. Natural law ends up with a subsidiary role as its details are worked out.

Natural Law and the Social Contract - The social contract is a wholly formal and analytic construct that can be used as a means of presenting conflicting political ideals. In Hobbes (or Bodin or Grotius) it is used in defense of absolutism; in Locke in support of limited constitutionalism. - At root, the political theory is that no man can be subjected to the political power of another without his own consent. Obedience to authority is thus legitimated by voluntary submission to those who exercise authority. - Thomas Hobbes (1588-1679) looked at state of nature in which man lived before his Social Contract as a war of every man against every man, a condition of internecine strife in which the life of man was solitary, poor, nasty, brutish and short. Self preservation is the great lesson of natural law and therefore law and government has thus become necessary to promote order and personal security. - John Locke (1632-1704) used the social contract to construct a natural rights doctrine. His state of nature differed from Hobbes in that the state of nature is an idyllic natural condition where the only thing lacking was protection of property. The purpose of government therefore is to protect mans entitlements. - Jean Jacques Rousseau (1712-1778) conceived the state of nature closer to Lockes than Hobbes though without emphasis on the sanctity of property. To Rousseau, the social contract is a mystical contract by which the individual emerges into the community and becomes part of the general will. Law is the register of the general will. Government can only be tolerated so long as it accurately reflects the general will. He who refuses to obey the general will shall be compelled to do so by the whole body. His concept of general will has come almost to replace the higher law standard that natural law presented. Kant and Human Freedom - For Kant, morality arises and can only arise from freedom. Not only does freedom make morality possible, but it determines it too. Kant accepted that human beings do not always act as morality requires- they lack holy will. But since morality and freedom are one and the same, provided the law is in conformity with morality, one can be forced to obey without forfeiting freedom. The Enlightenment - The 18th century is called the Age of Reason as the era attacked natural law with increased demand for secularism and rationalism. - Vico attacked natural law by arguing that the world of civil society has certainly been made by men. - Montesquieu believed that mankind was influenced by a variety of factors: climate, religion, laws, maxims of government, morals and customs. The individual is merely an instrument of historical change, a passive element within a system conceived as the ceaseless interaction of moral and physical forces. - Hume (1711-1776) developed a modern theory of natural law, which attempted to make a science of morality and law which had no need of a religious hypothesis. Justice was an invention of a naturally inventive species and from that point of view natural, the spontaneous product of life in society, and like that, as old as the species.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 94 - Burke (1729-1797) used natural law to shore up capitalist institutions and practices. He identified the laws of commerce as laws of nature and consequently laws of God. He saw a competitive, self-regulating market economy as a necessary part of the natural order of the universe. Fuller and the Morality of Law - For Fuller, the most fundamental tenet of natural law is an affirmation of the role of reason in legal ordering. The connection between law and morality is a necessary one. - Fullers initial premise was that a legal system is the purposive human enterprise of subjecting human conduct to the governance of rules. Whatever its substantive purposes, certain procedural purposes had to be acknowledged as goals if the system were to qualify as a system of law. As far as statutes were concerned, this required that they be: General Publicly promulgated Prospective Clear and intelligible Free of contradictions Constant through time so that people can order their relations accordingly Do not require the impossible Administered in a way sufficiently congruent with their wording so people can abide by them. These are also called internal morality of rules. As opposed to his 8 ways to fail to make a law 1. Every issue is decided on an ad hoc basis. 2. Failure to publicize a law or at least to make available to the effected party, the rules he is expected to observe. 3. The abuse of retroactive legislation, which not only cannot guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change. 4. Failure to make rules understandable. 5. The enactment of contradictory rules. 6. The enactment of rules that require conduct beyong the powers of the affected party. 7. Introducing frequent changes in the rules that the subject cannot orient his action 8. Failure of congruence between the rules as announced and their actual administration. ---Some appended articles Cicero True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. There may be different laws but there is only one eternal and unchangeable law that will be valid for all nations and times. God is the author of this law, its promulgator, and its enforcing judge. Justinian The civil law is distinguished from universal law. The civil law is the law which people makes for itself and is peculiar to itself. The universal law is the law which natural reason has prescribed for all mankind and held in equal observance amongst people. The civil law takes its name from the country to which it belongs but the universal law is common to the whole human race. Aquinas

1. 2. 3. 4. 5. 6. 7. 8.

D 2 0 1 4 L e g a l T h e o r y - H i l b a y | 95 Law is the rational ordering of things which concern the common good; promulgated by whoever is charged with the care of the community. Types of Law: 1. Eternal Law: The rational guidance of created things on the part of God. The divine reason that governs the whole community of the Universe. 2. Divine Law: Gods plan for the universe into which rational man could gain insight through revelation. 3. Natural Law: The participation in the eternal law by rational creatures. Features: Universality: There is one standard of truth or rightness for everybody, and this is equally known to everyone. But it can admit of exceptions: with regard to rightness because of certain impediments and with regard to knowability. Ex: depraved of passion, evil habits etc. Immutability: There are two ways in which natural law may be understood to change. One, certain additions are made to it. Second, having something subtracted from it, meaning something ceased to pertain to the natural law which was formerly part of it. 4. Human Law: particular dispositions of the precepts of natural law arrived at by an effort reason of man. Why do we need human laws? Man has a natural aptitude to virtuous action, but men can achieve the perfection of such virtue only by the practice of a discipline. Men who are capable of such discipline without the aid of others is rare indeed. So we must help one another to achieve that discipline which leads to virtuous life. Such discipline which compels under penalty is the discipline of law. Subordination of human laws to the natural law: There is no law unless it be just (St. Augustine) So, the validity of a law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: the first rule of reason is the natural law.