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Letter and Spirit: The Political Ethics of the Rule of Law Versus: The Political Ethics of the Rule of the Virtuous

Published online by Cambridge University Press:  05 August 2009

E. A. Goerner
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Extract

In recent years there has been a surprising turn in the discussions by moral philosophers, political theorists, jurisprudents, and economic theorists, or at least those economic theorists concerned with distribution. After years of treating justice as a value and, therefore, not an object for scientific investigation, it has become necessary to grapple once again with widely argued and mainstream claims that it is possible to articulate and defend, on the basis of reason, a substantive concept of justice with major consequences for politics, constitutional and statutory law, as well as public policy.

Type
Research Article
Information
The Review of Politics , Volume 45 , Issue 4 , October 1983 , pp. 553 - 575
Copyright
Copyright © University of Notre Dame 1983

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References

1 See Finnis, John, Natural Law and Natural Rights (Oxford, 1980), pp. 36–42.Google Scholar

2 See, e.g., Thurow, Lester C., Dangerous Currents: The State of Economics (New York, 1983), pp. 21–27.Google Scholar

3 Cambridge, Mass.: Harvard U. Press, 1971.

4 New York: Basic Books, 1974.

5 Cambridge, Mass.: Harvard U. Press, 1977.

6 More recently, Rawls has taken a more Kantian turn in his Dewey, John Lectures: “Kantian Constructivism in Moral Theory,” Journal of Philosophy, 77, no. 9 (1980), 515–572Google Scholar. Cf. Galston, William A., “Moral Personality and Liberal Theory; John Rawls' ‘Dewey Lectures,’” Political Theory, 10, no. 4 (1982), 492–519.CrossRefGoogle Scholar

7 In fact, Nozick's and Rawls's theories and, therefore, also Dworkin's theory, seem highly implausible in the absence of certain conceptions of human nature in which the individual has a radical primacy over either the species or any community of persons. Moreover, Rawls's theory seems to fit only a certain psychological type even though his device of the veil of ignorance is designed to exclude such limitation. I have in mind the character of the actor who uses Rawls's mini-max rule. He seems to be the perfect psychological opposite of what gamblers call the “high-roller.” Perhaps it is a general tendency of bourgeois thought to confuse rationality with the psychology of the “low-roller,” the risk-aversive.

8 I have here compressed the second principle by dropping the “just savings principle” and the requirement that inequalities be “attached to offices and positions open to all under conditions of fair equality of opportunity” and I have conflated the second principle with the general conception of justice. (Rawls, pp. 302–303.)

9 Taking Rights Seriously, p. 22. Dworkin makes a technical and controverted distinction between “principles” and “rules” that I have not retained inasmuch as he claims that his basic argument stands even if this technical distinction cannot be sustained.

10 Ibid., p. 182.

11 A Theory of Justice, pp. 3ff and 586.

12 Oxford: The Clarendon Press, 1980.

13 Ibid., p. 42.

14 Ibid., pp. 36–48.

15 Ibid., pp. 18–19.

16 Ibid., pp. 85–89, 103.

17 Ibid., pp. 100–133.

18 Ibid., p. 224.

19 Ibid., p. 225.

20 Ibid., Chap. 8. Whether Finnis can validly translate the whole tradition of natural law teaching into the idiom of natural rights is a matter of debate about which one may have serious doubts. Nevertheless, it is surely easier to translate the natural law into a set of natural rights than it would be to do so with classical natural right which, depending on virtue, could not be adequately stated in a set of rules or rights.

21 See the remarks on Locke, Kant, and Rousseau in Rawls's A Theory of Justice, pp. 256 and 264.

22 The standard introduction to the subject is Rossiter's, ClintonConstitutional Dictatorship (Princeton, 1948)Google Scholar. Though out of date, its general lines are still valid except for France where the Fifth Republic's article 16 marks a major change in French provision for emergency powers. See Hamon, Leo and Delcros, Xavier, Une République presidentielle?, 2 vols. (Paris, 1975–1977), 1:125–156 and 2:297–312.Google Scholar

23 Rawls, A Theory of Justice, p. 152.

24 Finnis, Natural Law and Natural Rights, p. 51.

25 Ibid., p. 128 and cf. pp. 31 and 225.

26 See my “On Thomistic Natural Law; The Bad Man's View of Thomistic Natural Right,” Political Theory, 7 (1979), 101–122CrossRefGoogle Scholar, and “Thomistic Natural Right; The Good Man's View of Thomistic Natural Law,” forthcoming in Political Theory (August, 1983). I am grateful to John Finnis for having recently pointed out to me that St. Thomas does, in fact, speak of natural law and natural right in two places as if they were equivalent (Summa Theologiae, II-II, q. 85, art. 1 and q. 187, art. 3, ad 1). In both cases Thomas uses three terms interchangeably: lex naturae, lex naturalis, and jus naturalis. In both cases his point is to distinguish what is required by grace from what is natural or required by nature. The focus is on nature and the contexts (including the objections he has to meet) make any discriminations between law and right irrelevant.

27 Finnis, Natural Law and Natural Rights, pp. 51 and 225.

28 Rawls, A Theory of Justice, pp. 90–95, 97. He does this in order to make his second principle of justice the last one by having it deal with pure, homogeneous aggregates.

29 Leviathan, chap. 11, paras. 1–6 and chap. 13, paras. 9 and 14. Although Hobbes attempts to focus on the passions themselves rather than on their objects, he does not in fact succeed in differentiating them except by reference to their objects or groups of them.

30 Dworkin, Taking Rights Seriously, p. 81.

31 Thus St. Thomas Aquinas, expressly following the tradition of Roman law, speaks of judges who go beyond the letter of the law where the letter is defective when viewed against a hard case. They decide such cases by laying down what the legislator would have laid down had he thought of such a case. Thus the judge is the legislator in such cases by substitution. See Summa Theologiae, II-II, q. 60, art. 5, ad 2, relying on the Roman Digest at I.1. tit.3. leg. 25: Nullus juris.

32 Plato Republic ii. 358e–368c.

33 The New York Times, Sun., 19 June 1983, sec. 2, pp. 1, 24.

34 Aristotle Nicomachean Ethics v. 1134b 18–1135a 6.