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The Antinomies of Social Justice

Published online by Cambridge University Press:  05 August 2009

Extract

Theories of social justice are either hegemonic (defending a single determinate standard), skeptical (finding social justice to be radically indeterminate if not meaningless), or pluralistic (claiming that we can disqualify all but a handful of standards, but that we cannot definitively adjudicate among these). I offer here a variation of the pluralistic view, arguing that a single standard cannotbe definitive because of what is termed the antinomies of social justice. These antinomies arise where the demands of justice collide with elements of the gratuitous that are morally valid or are practically unavoidable. Where this occurs, all possible distribution rules turn out to be unfair. An important implication of the argument is that liberal democracies cannot find their grounds for consensus, as John Rawls contends, in a common attachment to principles of justice. Instead, common interests and civic friendship will always be necessary supplements to the sense of justice as a source of social bonds in a free society.

Type
Research Article
Copyright
Copyright © University of Notre Dame 1993

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References

1. The sanguine acceptance of the this limitation is what accounts for the very considerable annoyance these social theorists generate among adherents of classical philosophy. See, for example, Allan Bloom's testy complaint that “one finds no reflection on how Rawls is able to break out of the bonds of the historical or

1. The sanguine acceptance of the this limitation is what accounts for the very considerable annoyance these social theorists generate among adherents of classical philosophy. See, for example, Allan Bloom's testy complaint that “one finds no reflection on how Rawls is able to break out of the bonds of the historical or cultural determinism he appears to accept, no reflection on how philosophy is possible within such limits” (Bloom, “Justice: Rawls, John vs. The Tradition of Political Philosophy,” American Political Science Review 69 (1975): 648–62.Google Scholar

2. Kelsen, Hans provides a candid and philosophically explicit statement of this position in his What Is Justice? (Berkeley: University of California Press, 1957).Google Scholar Assuming that the concept of justice is susceptible to the same skeptical demurrers he enters against the concept of natural right, Dahl's, Robert conclusions in A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956)Google Scholar seem to embody a similar perspective.

3. Hayek, Friedrich Von, Law, Legislation, and Liberty, 3 vols. (Chicago: University of Chicago Press, 19731979), esp. vol. 2.Google Scholar

4. Aristotle, , Politics, trans. Barker, Ernest (New York: Oxford University Press, 1958), p. 117.Google Scholar

5. Miller, David, Social Justice (Oxford: Clarendon Press, 1976).Google Scholar

6. Ibid., “Preface.”

7. For elaboration of these points, see Cahn, Edmond, The Sense of Injustice (Bloomington, IN: Indiana University Press, 1949)Google Scholar; Baier, Kurt, The Moral Point of View, (Ithaca, NY: Cornell University Press, 1958)Google Scholar; and Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 130–36.Google Scholar

8. Rawls, John, A Theory of Justice, p. 103.Google Scholar

9. Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 192.Google Scholar

10. Ibid., p. 228.

11. Rawls, , A Theory of Justice, p. 101.Google Scholar

12. Indeed, one recent account of this area of tort law explicitly invokes the language of antinomy in characterizing the opposing positions. See Balkin, J. M., “The Crystalline Structure of Legal Thought,” Rutgers Law Review 39 (1986): 1110.Google Scholar I am indebted to T. K. Seung for bringing this example to my notice in his paper “Constrained Indeterminacy”, presented at the 1990 meeting of the American Political Science Association.

13. Helvetius, Claude, De I‘Esprit, or Essays on The Mind (New York: Burt Franklin, 1970), pp. 280–81.Google Scholar

14. Fishkin, James provides a good account of some of the deep policy and moral dilemmas in this area in his Justice, Equal Opportunity, and The Family (New Haven and London: Yale University Press, 1983).Google Scholar As he notes there, the “core process equalities” dictated by schemes of liberal justice have a “truly radical character… when taken seriously” (p. 168). Full equality of opportunity, for example, is not compatible with the institution of the family.

15. Rawls, , A Theory of justice, p. 103.Google Scholar

16. See Gauthier, David, Morals by Agreement (New York: Oxford University Press, 1986)Google Scholar, and Rorty, Richard, Contingency, Irony, and Solidarity (New York: Cambridge University Press, 1989).CrossRefGoogle Scholar

17. Sandel, Michael J., Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982).Google Scholar

18. See Walzer, Michael, Spheres of Justice (New York: Basic Books, 1983)Google Scholar and Fishkin, James S., The Dialogue of Justice (New Haven and London: Yale University Press, 1992).Google Scholar

19. Frohlich, Norman and Oppenheimer, Joe A., “Choosing Justice in Experimental Democracies with Production,” American Political Science Review 84 (1990): 461–80.CrossRefGoogle Scholar

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