Petri Lahtinen
Introduction
In our latest blog post we examined the influence of the American philosopher John Rawls on theories of justice. As already stated many times in that text, Rawls’ theory has been influential in numerous ways. On the one hand, it offered a viable alternative to utilitarianism that had prior to that dominated the Anglo-American discourse on justice. Yet, on the other hand, it also shifted theories of justice back towards the tradition of contract theories. Even critics of Rawls’ theory generally recognise the importance of it, and thus most of the theorising and debates on justice in the late 20th and early 21st centuries are based in one way or another on Rawls’ thought and theories. In this text, I will examine some of these so-called post-Rawls theories of justice. It should be noted that, like Rawls, many of these theories are centred around the output of a single thinker, although many of these theories have also had their advocates but also their critics. Clearly, this text is not – and could not be – a comprehensive overview of post-Rawls theories of justice. Instead, this text focuses on luck egalitarianism, the capabilities approach, and moral philosophy of Thomas Scanlon as a basis for justice. These approaches have been selected here primarily because of their importance in the Anglo-American discourse on justice.
Luck egalitarianism
Luck egalitarianism can be viewed not solely as a school of thought but also as a systematic theory that has sought to address certain shortcomings in Rawls’ theory. Several thinkers have contributed to the movement, but the most influential is probably the American legal philosopher Ronald Dworkin, whose luck egalitarian theory is most convincingly articulated in his 2000 book Sovereign Virtue: The Theory and Practice of Equality. As the subtitle of the book, and the name of egalitarian theories in general, suggests, the central concept and value of egalitarianism is equality: the equal treatment of people in democratic societies is seen as an end in itself – something that does not need to be justified by ulterior arguments. Dworkin himself refers to this as a sovereign virtue, which is also the title of the book by Dworkin. If we reflect on the history of theories of justice in the West, we find that Dworkin again elevates virtue as the basis of justice as a whole. On the other hand, Dworkin’s concept of virtue should not be mistaken for a moral proposed by the historical theories of virtue ethics, but rather it can be said to be a value on which functioning democracies should be built. As a clear departure from the welfare egalitarians and Rawls, in Dworkin’s thought, and that of the so-called resource egalitarians, the distribution of resources among individuals rather than welfare or basic commodities is central to the realisation of justice. Rawls’ theory considered the distribution of so-called basic commodities and their equitable distribution mainly among those people who are able to participate in socially relevant cooperative activities in society. Dworkin, on the other hand, argues that in a just society the distribution of resources should be considered among all people, even if their physical and mental capacities and abilities to participate in social cooperation differ. However, Dworkin stresses that justice and its principles should be able to take into account the voluntary choices of individuals and also be ambition sensitive. Instead, the principles of justice outlined by Dworkin should be endowment insensitive.
As the very name of luck egalitarianism suggests, luck plays an important role in the theory and its conception of justice. Dworkin himself begins his theory by distinguishing between two different types of chance, which he terms option luck and brute luck. These two types of luck are essential to the question of justice: according to luck egalitarians, the individual should be responsible for the consequences of chance that depends on his own choices, whereas he cannot be responsible for the consequences of brute luck. Consider the example of two individuals who purchase a phone charger. In the first case, the individual acquires a second-hand charger with a cord that is visibly defective in some way. In the second case, the individual buys a new charger from a reliable manufacturer. Next, suppose that both chargers cause a fire in the homes of these given individuals. In the first case, the coincidence of the fire can be said to be due to an individual choice, as the individual in question has deliberately acquired a defective charger. In the second case, the fire is purely coincidental because the new charger had some kind of manufacturing defect of which the individual was unaware. In a very specific example such as this, it is easy to argue, at least ostensibly, in favour of option luck and brute luck. However, in the real world, the distinction between option luck and brute luck is rarely so clear-cut, and in many cases a particular outcome may be the result of both. Let us return to the above example. It is possible that in the first case, the person who bought the faulty charger cannot afford to buy a new charger and has received the faulty charger for free from a friend who has assured the individual that it works. This raises the question of how easy it is to define poverty, for example, as a matter of option luck and brute luck. Ultimately, Dworkin himself concludes that injustice and inequality that arise from circumstances beyond the control of individuals can never be completely eliminated. In relation to Rawls’ theory, luck egalitarians also argue that voluntary choices may affect, for example, the distribution of income, but should not be affected by circumstances. In general, luck egalitarians seem to believe that the central flaw in Rawls’ theory is the failure to make this distinction, which is central to justice.
When considering the ontological distinction between option luck and brute luck, luck egalitarians often end up addressing the issue of free will, which tends to be a philosophical and especially metaphysical problem. Above all, the central question of free will is whether human beings are actually free to make choices or whether our choices are always ultimately influenced by some external factors. In trying to resolve this problem, Dworkin has drawn a distinction not only between option luck and brute luck, but also between chance that is relevant and chance that is irrelevant regarding issues of justice. The dilemma is a central for luck egalitarianism while considering how a just society should organise its institutions and systems to accommodate the inequalities and injustices that chance generates.
In the chance egalitarian distribution of resources, Dworkin has considered the so-called envy test as afair and equal measure. This refers to the outcome in which the available resources are distributed among different individuals. If none of the individuals involved in the distribution envies anyone else’s share of the resources after the distribution, the distribution of resources can be considered fair and equal in Dworkin’s view. It should be noted, however, that the emotion of envy here is limited to the emotion felt towards the resources to be shared, and does not include all possible feelings of envy and their causes. In the context of resource distribution, Dworkin has also recommended some form of tax and transfer system to ensure fairness and equality. This is intended to mitigate the differences in the distribution of economic resources that arise from the talent of individuals. However, it should be noted that luck egalitarians are ready to accept certain socio-economic differences between people. What is important, however, is that these potential differences arise in a free market in which participants have the same initial capital. Here, too, the aim is to reduce the differences in people’s choices by means of different types of insurance, even if the funds used for different types of insurance are taken from funds intended for other purposes. Dworkin himself believes that here people are prepared to tolerate a certain amount of uncertainty and take some of the responsibility themselves.
Luck and resource egalitarians do not consider the concept of well-being as a meaningful measure to base equal and fair distribution, because they see differences in people’s taste preferences as a key problem here; especially the so-called expensive tastes are problematic for the distribution of well-being. The view of the difference between welfare and resource egalitarians on tastes is crystallised in the disagreements on this issue raised by Dworkin and Gerald Cohen, a Canadian professor of social and political science. Dworkin argues that the accidental or acquired expensive tastes of certain individuals are not such as to entitle those individuals to any form of compensation or redress. Instead, Cohen held that expensive tastes justify compensation if those tastes are not voluntarily chosen. Of course, in the latter case, we again run into the perennial problem of egalitarianism, i.e. the problem of free will. That is, in Cohen’s argument it is problematic to determine which of the tastes of individuals are voluntarily chosen and which are not. The British philosopher Brian Barry has suggested that the dispute between Dworkin and Cohen could be resolved by shifting attention to the question of the extent to which people, at a psychological level, identify with their own tastes.
Luck egalitarianism has been criticised, first, for the position it gives to choice in terms of justice, and second, for its focus on the academic discourse of the dichotomy between choice and circumstance, which is often seen as disconnected from real life. American philosophers such as Elisabeth Anderson and Martha Nussbaum, and the Indian-born economist Amartya Sen, have pointed out that theories of justice should focus on promoting equality by eradicating social oppression and the worst injustices. Luck egalitarianism can be accused of failing to do this by focusing too much on the theoretical distinction between choices and circumstances. In general, critics of luck egalitarianism have seen the concept of choice as a somewhat bizarre basis for equality and inequality in the pursuit of justice. For example, it seems somewhat inhumane and cruel to suggest that an individual who has an accident is not entitled to certain compensations, even if that accident is the result of the individual’s own choices. The central psychological problem with setting choices as criteria of justice is the fact that different people, for one reason or another, have different capacities to weigh and choose between different kinds of options.
In addition to option luck, critics of luck egalitarianism have also problematised the social compensation justified by brute luck. While in the case of option, luck egalitarianism can to a certain extent be blamed for the lack of empathy and a general sense of human assistance, in the case of brute luck it can be argued that assistance is based on a wrong feeling i.e. that of pity. At worst, luck egalitarians can be accused of seeing people as unequal purely on the basis of what luck has brought them. In this respect, Anderson has sought to develop egalitarianism in the direction of what he calls democratic egalitarianism, which would be based on treating people equally from the outset. Similarly, physiological, psychological, and cultural differences between people would be seen as a natural part of a diverse and conflicting human community rather than as a justification for the existence of different hierarchical structures.
In the light of current environmental crises and global justice, the concept of resource within luck egalitarianism should also be critically re-examined. According to strong sustainability, deep ecology and other approaches that respect planetary boundaries, resource should be understood not only as a raw material or commodity, but more broadly as a concept through which people work and understand the world. An overly one-dimensional understanding of the resource is based on a straightforward and linearising way of thinking in which humans split up and separate the material world into seemingly manageable bits and transferable pieces. Fossil capitalism, for example, understands nature instrumentally as a store of resources and raw materials that serve man’s manifold techno-economic aspirations. If luck egalitarianism is to develop a broader understanding of global and environmental justice in the future, it must also be able to update its own understanding of the resources to be distributed.
Capabilities and their distribution as a basis for equity
The so-called capability approach or capability theory is a theory developed by the Indian-born Nobel laureate in economics Amartya Sen. It is based primarily on the ideal of equality rather than on any well-defined notion of a good life. Instead, it emphasises the freedom of choice of individuals and also stresses the importance of impartiality in the concept of justice. As such, the theory does not represent a theory of justice in the traditional sense, as it does not seek to outline how a just society as a whole should be composed and organised. Indeed, a key motivation for developing the capability approach has been to criticise Rawls’ approach for seeking to describe an ideal society in which justice and equality prevail. Sen himself considers such hypothetical thought structures to be both secondary and utopian in real life while pursuing justice. Like the critics of luck egalitarianism, Sen believes it is more important to address current existing injustices.
The aforementioned impartiality – or rather the ideal of it – can be approached and implemented in many different ways, although at the same time, according to Sen, it is impossible to define a set of principles that perfectly satisfy the requirement of impartiality. In this context, Sen himself has drawn particular attention to the concept of the impartial observer and its metaphor, which was developed by the 17th century Scottish moral philosopher Adam Smith. The impartial observer in this case should not be understood as a concrete position, but rather as an imaginary tool of reasoning that seeks to assess and distinguish between what is essential and what is irrelevant to moral judgement. The impartial observer should represent what is known as open impartiality. This means that the observer must be able to detach himself not only from one’s own personal perspective but also from the perspective of one’s own culture. The open neutrality of the neutral observer in Sen’s theory is intended as a development of Rawls’ theory, because Rawls’ veil of ignorance only represents a so-called closed neutrality; it requires the party to the social contract to detach oneself only from one’s own personal perspective, but not from the wider cultural perspective.
Sen’s criticism of Rawls’ theory is not limited to the question of impartiality. In addition, Sen has criticised Rawls’ theory on the grounds, among other things, that even though so-called civil liberties should have a certain primacy, this status should not be absolute. Sen has also argued that Rawls’ difference principle or luck egalitarianism, in focusing on the equal distribution of different resources, do not take into account that people have very different conditions and capabilities to transform basic goods into different conditions for a good life. However, according to Sen, the central shortcoming of Rawls’ and many other theorists’ theories of justice is their over-theorising and abstraction. One can legitimately question the relevance and adequacy of imagining an ideal just society and the utopia of it if we are unable to correct the concrete injustices of existing and real societies. Sen himself believes that this objective should be the primary goal of any reflection on justice. The blatant forms of injustice to which Sen is referring include phenomena such as hunger, poverty, illiteracy, torture, racism, gender-based oppression, arbitrary imprisonment and health inequalities. It is not enough to consider what social structures and institutions would be just in theory. Instead we should focus first and foremost on imagining how such institutions and structures would work in practice, so that glaring injustices such as those mentioned above do not arise. Equally, Sen considers the contract theory approach to be inadequate in the context of the present-day world, which is extremely globalised and interdependent. Thus, many issues of justice should also be viewed as global issues that can no longer be considered only within artificially defined geopolitical boarders.
While previous theories of justice have made welfare or resources, among other things, their central concepts, Sen’s own theory starts from the concept of capability. This refers to an ability of a person to do things that he or she needs or values. Functional capability should not be understood as an external resource or commodity, but as a human characteristic in relation to various resources and commodities. Sen has felt the need to create the concept of capability to act because, in his view, a consideration of the distribution of resources, as emphasised by Rawls or considered by the luck egalitarians, is not an adequate method for developing just practices. This is primarily because people have different conditions and opportunities for utilising the resources that can be shared. These conditions and opportunities can be outlined on the basis of a classification developed by the Belgian philosopher Ingrid Robeyns, who refers to what she calls conversion factors. The first of these is the personal conversion factor, which refers to an individual’s innate or acquired capacity to convert various resources into well-being. The next layer is the social conversion factor, which refers to the socio-social structures and conditions that influence the use of resources. The final conversion factor is environmental, which refers to geography and climate.
Sen himself sees the capability model as based on the notions of negative and positive freedom. Here, Sen distinguishes the concept of capability from the concept of functioning specifying that capability means precisely the ability to carry out an action in a certain way. From the perspective of justice, people should also have a real, concrete freedom to choose between different options for action and how to utilise these. As an illustrative example, consider the case of outdoor recreation: society may be seen as obliged to allow citizens to move freely outdoors, but on the other hand society should also provide people with different places and spaces to practice outdoor recreation. On the other hand, one could consider the historical-cultural injustice of restricting access of women to the outdoors. Equally, although everyone is allowed to go outdoors, this possibility and ability cannot be fully realised if society concentrates on creating and maintaining only private spaces or, for example, an infrastructure primarily intended for motor vehicles. The capability model must also take into account the fact that some people have reduced mobility due to disability. Thus, from the perspective of equality, society should also provide such people with opportunities to realise their capability for outdoor recreation, in particular through accessibility.
Sen refrains from setting out clear criteria for the equal and fair distribution of capabilities. Instead, he considers it more important to leave room and scope for different reflections and emphases on this issue in his own theory. Equally, Sen refrains from offering a concrete list of capabilities; he does not consider it desirable or even possible for any theory of justice to be able to offer a generally applicable, commensurate, and universal principle of justice in a diverse and contradictory world; this, according to Sen, is the responsibility of deliberative democracy. It is true, of course, that the capability perspective has a major influence on what should be the primary focus of attention in the pursuit of justice. Nevertheless, Sen does not think that it is justified that all people should be guaranteed the same capabilities, since people also use capabilities in numerous different ways while pursuing a good life. The ideal of equality is therefore central, above all, to the capability model. Yet Sen views capabilities as only one of the factors needed to achieve equality. In addition to equality, Sen has stressed the importance of taking into account and balancing different perspectives, worldviews and values in the pursuit of justice.
One of the most important developers of the capability approach is the American philosopher Martha Nussbaum. She has gone on to develop her own theory of capabilities by criticising Sen for not providing a list of capabilities or prioritising the different capabilities. It was this shortcoming that led Nussbaum herself to see the need to draw up a list of capabilities which, in her view, define the basic conditions for a dignified human life, which in a just society should be guaranteed to all. This list serves above all as a guideline to which the citizens of a democratic system can appeal and claim in the constitution of their own nation state. Over time, Nussbaum has modified and made additions to her list, and the list below is taken from her 2006 book Frontiers of Justice:
- Life. The possibility of living the normal human life span, without dying prematurely or before life is reduced to the point where it is not worth living.
- Physical health. Access to good health, including reproductive health, adequate nutrition, and shelter.
- Physical integrity. The ability to move freely from one place to another, to be safe from violence. There must be options and opportunities for sexual satisfaction.
- Senses, imagination and thinking. The ability to use one’s senses, to imagine, to think and to reason. All this must be able to do in a ‘truly human way’, informed and refined by the necessary education, including literacy, basic maths, and science. The ability to use imagination and thought to experience and produce religious, literary, musical, etc. works and events of one’s choice. The possibility to use one’s own mind in ways that are safeguarded by the guarantees of freedom of expression. The possibility of having pleasant experiences and avoiding unhelpful pain.
- Emotions. The possibility of relating to things and other people. The opportunity to love those who love and care for us, to grieve their absence; to love in general, to grieve, to experience longing, gratitude, and justified anger. Fear and anxiety must not be allowed to cloud emotional development.
- Practical sense. An opportunity to formulate a concept of goodness and engage in critical reflection in the design of one’s own life.
- Contact.
- The opportunity to live with others, to experience and show concern for others, to participate in many forms of social interaction, to imagine the situation of others.
- The possibility of a social foundation of self-respect and dignity, to feel treated as a worthy and equal individual. Not to be discriminated against because of one’s race, gender, sexual orientation, ethnicity, caste, religion, or origin.
- Other species. The possibility of living in relationship with animals, plants, and nature.
- Play. A chance to laugh, play and enjoy leisure activities.
- Managing your own environment
- Political. The opportunity to participate effectively in political choices that affect one’s life. The right to political participation, safeguarding freedom of expression.
- Material. Access to property and equal rights to property. Access to equal opportunities to seek employment. Freedom from unreasonable search and seizure. The opportunity to work as a human being exercising practical common sense and to be in a meaningful relationship with other workers based on mutual acceptance.
Nussbaum argues that without any of these capabilities, life has no human value. In contrast, Nussbaum’s theory of capabilities assumes an ideal of universality: this means, in terms of justice, that every citizen in every state worldwide values them, and every person is treated as an end in him/herself. However, despite the claim to universality Nussbaum’s approach seeks to respect the possibility of pluralism in six ways: 1) The list is open. It can be constantly reassessed in the way that any society is subject to additions and deletions in terms of its fundamental rights; 2) The list should be specified in some abstract and general way, leaving room for citizens and their legislatures to specify and consider the various items on the list. Within certain parameters, it is acceptable for different states to operate in different ways, taking into account their history and specific circumstances; 3) The list is intended for political purposes and is not based on metaphysical ideas that divide people by culture and religion; 4) The political goal is capability, not functioning; 5) The most important freedoms that protect pluralism are on the list: freedom of speech, association and conscience; 6) The issues of justification and implementation must be distinguished. States should therefore not be forced to arbitrarily approve capabilities.
In addition to the list of capabilities, Nussbaum has introduced the concept of a certain threshold that must be reached in order to have a valuable human life. Nussbaum is also unconditional in her own thinking in that she calls for the guarantee of certain capabilities for all people. Similarly, the lack of one capability cannot be compensated, from the point of view of justice, by another capability or by raising its level. Moreover, Nussbaum has developed Sen’s theory by emphasising the need to take account of capabilities particularly in the case of people with disabilities, non-human animals and, more broadly, international justice. While Sen refrained from making overly specific claims about capabilities in his theory, the list of capabilities offered by Nussbaum has been criticised on the basis that it seems to predate a certain universal notion of a good human life worth pursuing. Here, capabilities are interpreted as common and universal basic conditions of human life that do not take into account personal, cultural and environmental differences in the concept of the good life. Nussbaum has responded to the criticism by pointing out that people should indeed be free to use or not to use the capabilities she lists, but that society should in any case provide these as actual opportunities. Sen has commented on Nussbaum’s list by pointing out that, while it is potentially constructive in itself to list the capabilities, that a society seeking justice should ensure, it is still unrecommendable to draw up a generally applicable, universal and, above all, permanent list. As an alternative, he has again put forward the idea of a democratic process capable of critically examining, weighing up and, if necessary, modifying the list of capabilities according to the variables of time and place.
In general, the capability approach has been criticised for being too individual-centred and atomistic. In particular, the capability model has been seen as flawed because it tends to view individuals as discrete objects of justice rather than as subjects or active agents in their own social and natural environments. The capability approach thus fails to take sufficiently into account the numerous different groups of people and other social structures that have an essential influence on individual life and behaviour. Furthermore, the theory has been criticised by luck egalitarians for being primarily concerned only with the existence, supply, and distribution of capabilities, rather than with how people actually use these different capabilities. According to Dworkin, the capability approach and its central concept of capability differs from resource egalitarianism and its concept of resource only in terms of terminology. Although Sen originally developed his theory of capabilities partly on the basis of his view that previous theories of justice focused only on the ideal of justice and just societies, the German-born philosopher Thomas Pogge has pointed out that guaranteeing capabilities to all people is practically impossible because it would require an individual assessment of all people.
What we owe each other
When luck egalitarians reflect on the responsibilities and duties of society and the community, the American philosopher Thomas M. Scanlon has distinguished between the concepts of moral and social responsibility. Scanlon argues that the two different types of responsibility should not be seen as mutually exclusive. The moral responsibility of the individual should be understood as applying only to his or her own choices, while social responsibility covers those issues and phenomena that are related to social conditions and circumstances. In assessing actions of an individual from a moral perspective, we should, according to Scanlon, assess the responsibility of that individual for his or her own actions. This responsibility, in turn, consists of the individual’s beliefs, intentions, motives and attitudes, which reflect the judgement of the individual. Furthermore, this judgement again guides the individual’s beliefs, intentions, motives and attitudes. It is thus a self-perpetuating and corrective process on which the morality of an individual is built.
Scanlon’s own theory differs from the previous theories presented, firstly in that it was not originally intended as a theory of justice so much as a theory of ethics. Nevertheless, many have pointed out that the ideas of Scanlon are also applicable to issues of justice. Scanlon’s 1998 book What We Owe to Each Other begins with the central question of the basis on which one can claim that a particular act is morally right or wrong. Scanlon views the arguments that we are able to offer in support of various moral judgments as essential. The theory of Scanlon is primarily concerned with acts that in one way or another affect not only the life of the individual committing the acts but also other people. Thus, Scanlon’s theory can be referred to as interpersonal morality.
Scanlon, unlike Sen and Nussbaum, returns to the tradition of social contract theories and asks what kind of principles of morality and justice people could agree on together and accept as the basis of their own society, or even as universal laws. A moral code, according to Scanlon, must be such that it can be imagined having emerged from an informed and voluntary agreement. Here Scanlon stresses the usefulness of a negative definition: the act under consideration can be found morally wrong in specified circumstances if the act described is not permissible under a specified moral rule in specified circumstances. In other words, Scanlon’s central idea is to approach what is morally right by defining what is morally wrong: the moral principle that defines an act is acceptable only if the other parties to the contract cannot justifiably reject it.
Like Rawls, Scanlon, in his own view, emphasises the rationality of human beings, which he links above all to the dynamics between beliefs and behaviour. According to Scanlon, rationality requires that the attitudes, beliefs, and behaviour of the individual do not contradict his or her own conclusions. On the other hand, Scanlon does not consider rationality to be a good basis for judgements on moral values, because he considers such judgements to reflect above all the personal interests and power of the parties to the agreement: in this case, the impartiality of the social contract, or at least the ideal of it, is compromised. Scanlon, on the other hand, considers the search for consensus to be more important in the formation of moral judgements. This consensus must concern the purpose of moral action and its goals and reach a level where the resulting moral judgment cannot be justifiably rejected by any rational person.
Instead of accepting principles, Scanlon focuses on rejecting them for two reasons. First, traditional contract theories often include a so-called right of veto, i.e. the right to reject a proposed contract. On the other hand, Scanlon argues that a moral principle cannot be based on the possibility that a particular group of people might sacrifice themselves and assume disproportionate burdens in order to promote the public interest. For this latter reason, Scanlon has been particularly critical of utilitarianism, which focuses on calculating the aggregate welfare of society, even if this means the disadvantage of certain groups. The central question is how a particular moral principle can be justifiably rejected. Scanlon has put forward four key principles of evaluation in this regard. First, when considering a given situation, one should consider which moral principles are relevant and appropriate. Second, one should consider the harm that an act in accordance with a given permissible moral principle might cause to others. In turn, one should also consider what harm others might suffer if the same moral principle were prohibited. Finally, the best of the principles considered should be chosen by examining the possible reasons for different groups of people to reject a particular principle.
Scanlon himself presents the concepts of fairness and well-being as two important criteria for evaluating moral principles, the latter of which can also be understood as an avoidance of harm. The former, on the other hand, must again be understood in the sense that, from the point of view of justice, no privilege or special treatment can be granted to any individual or group without an acceptable justification. In addition to these, Scanlon has further put forward two principles relating to the avoidance of disadvantage. The first of these is the so-called rescue principle, according to which a person in distress or pain should be rescued as long as it does not require unreasonable sacrifice on the part of the rescuer. The second is the principle of helpfulness, which in turn requires the individual to help a person in need, as long as this helping does not require an unreasonable sacrifice on the part of the person giving the help. More generally, Scanlon argued that arguments based on this moral theory should be general in nature, based on a particular standpoint, and should also be generic and personal in nature. The first of these refers to the idea that moral principles should be based on a practice in which one is prepared to understand the standpoints of others from the outset by imagining oneself in their position. However, this should not be mistaken for a claim that reasoning is somehow tied to individuals but is a broader and more general perspective represented by particular groups of people. The generic nature of moral judgements, in turn, means that they must be based on what people are generally in favour of, on the one hand, and against, on the other. The personal argument is perhaps the most difficult to understand, but in a nutshell it means that the argument should be related to the perspective of people in a particular situation, rather than to anindividual person.
Somewhat like Sen, the contractual procedure proposed by Scanlon does not necessarily lead to the selection of only one principle, but it is possible that several moral principles will be selected. However, this is still subject to the condition that they satisfy the criterion of justifiable non-rejection required by Scanlon. Thus, the moral theory of Scanlon is also able to recognise the diversity of life and to accept that different moral principles may be chosen in different cultures and communities. In essence, Scanlon’s method is intended to set limits on the principles that can be included in the range of acceptable moral principles. Similarly, Scanlon’s method does not lead to absolute moral principles, since for each principle the consequences of the actions it justifies or forbids must be assessed. Moving from moral judgements to principles of justice, an analogous relationship between the two can be sketched in Scanlon’s theory.
The theories of Rawls and Scanlon have important similarities at times, but there are also important differences between the two. First, both theories represent the tradition of contract theories. Whereas Rawls considered impartiality to be guaranteed by the absence of factors that distinguish individuals in a contractual situation, Scanlon considers a contractual situation to be impartial as long as the parties to the contract want to reach an agreement. For Scanlon, this means the willingness of the parties to the agreement to justify their positions to others by arguments that cannot be justifiably rejected by others. In his own theory, Rawls invites us to imagine what principles of justice a rational and self-interested party to a social contract would choose when drawing up a social contract behind the theoretical veil of ignorance. Scanlon, on the other hand, rejects self-interest in the contractual situation and substitutes consensus or the intrinsic value of the contract.
Scanlon himself felt that his theory and the concept of justice it proposed would not necessarily lead to a Rawlsian difference principle. On the other hand, Scanlon also understands that the pursuit of justice and its methods should focus on the conditions of the most disadvantaged. This idea is consistent with Scanlon’s theory, since the most disadvantaged can often be imagined as likely to have the most compelling reason and justification for rejecting a particular proposed principle if it does not advance their position. In contrast, Scanlon argues that the Rawlsian difference principle as an absolute norm, which always requires the choice of an arrangement that maximizes the welfare of the least advantaged, is contrary to his own theory. Scanlon wants to move attention away from the analysis of relative welfare and instead focus on the evaluation of absolute welfare.
The principle of rejection is central to Scanlon’s theory, but it is also the first target of numerous critics. Many consider it to be above all unjustified and pointless since the rejection proposed by Scanlon can only be based on moral grounds. The critics of Scanlon therefore turn to the question of why moral considerations cannot appeal directly to these grounds themselves. Moral arguments are necessary for the acceptance or rejection of moral principles, and it is on this basis that the critics of Scanlon argue that the agreement drawn up by the contracting parties is an unnecessary addition to the consideration of morality. The morality of an act should therefore be determined by whether the principle behind it can be justified to others rather than rejected. In Scanlon’s contract theory, moral rules do not exist before the contract, and morality arises only as a result of the contract itself. Equally, the theory is seen as weak in that it does not define a specific set of moral principles. Moreover, to put it a little more bluntly, it can legitimately be argued, on the basis of human psychology, that even rational people are rarely able to reach a completely unanimous agreement on any issue. Yet, as a primarily ethical theory, it is questionable whether the theory of Scanlon could function as a basis for an entire social contract.
Conclusion
In this concise text, I have attempted to present in a somewhat comprehensive way the main arguments of such successive theories to John Rawls’s theory of justice as luck egalitarianism, the capabilities approach and Thomas M. Scanlon’s moral theory. As I mentioned at the beginning of the text, this review should not be taken to cover even all the most important post-Rawls theories of justice. For example, the theories of the British philosopher Brian Barry would rightly have deserved a place in this text were it not that the text is quite lengthy as it is. However, it should be clear that the question of justice is one on which complete and final consensus is unlikely ever to be reached. Therefore, new and different theories not only seek to address the shortcomings of previous theories, but also to respond to the pressing problems of their time. At the time of writing this, the wars in Ukraine and Gaza, as well as the rise of the far right around the world, are some of the pressing issues in the minds of many. Thus, current thought on justice and its theories should be able to respond to these phenomena in particular, but above all to the larger challenges behind them. On the other hand, climate change and other multiple and simultaneous environmental crises threaten the conditions of life and its continuity for countless living beings, including human beings. Compared to historical theories of justice, contemporary theories about justice should therefore be able to expand their perspective and imagination to include not only justice between humans in our societies, but also the kinds and types of justice that apply to non-human animals and beings, and even more broadly to whole environments and the whole biosphere.
Literature:
Anderson, Elizabeth S.: What Is the Point of Equality? Ethics 109: 287-337.
Barry, Brian: Theories of Justice. London: Harvester-Wheatsheaf, 1989.
Barry, Brian: Justice as Impartiality. Oxford: Clarendon Press, 1995.
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