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Contractual Justice: A Modest Defence

Published online by Cambridge University Press:  26 January 2009

Brian Barry
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Extract

As the author of Justice as Impartiality, I am not ashamed to admit that I was delighted by the liveliness of the discussion generated by it at the meeting on which this symposium is based. I am likewise grateful to the six authors for finding the book worthy of the careful attention that they have bestowed on it. Between them, the symposiasts take up many more points than I can cover in this response. I shall therefore focus on some themes that cluster round the contractual device that I associate with the notion of justice as impartiality. Is it necessary? If it is not necessary is it nevertheless useful? Within an overall contractual framework is the form of contract that I propose uniquely justifiable? And does the form of contract that I defend generate the implications that I claim for it?

Type
Research Article
Information
Utilitas , Volume 8 , Issue 3 , November 1996 , pp. 357 - 380
Copyright
Copyright © Cambridge University Press 1996

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References

1 Barry, Brian, Justice as Impartiality, volume II of A Treatise on Social Justice, Oxford, 1995Google Scholar.

2 Scanlon, T. M., ‘Contractualism and Utilitarianism’, Utilitarianism and Beyond, ed. Sen, Amartya and Williams, Bernard, Cambridge, 1982, 103–28CrossRefGoogle Scholar.

3 Barry, Brian, Theories of Justice, volume I of A Treatise on Social Justice, Hemel Hempstead, 1989Google Scholar.

4 Contrary, to Taurek, John, ‘Should the Numbers Count?’, Philosophy and Public Affairs, vi (1977), 293–316Google Scholar. See Justice as Impartiality, pp. 225–6.

5 See e.g., Donagan, Alan, The Theory of Morality, Chicago, 1977CrossRefGoogle Scholar.

6 Kelly, Paul, ‘Taking Utilitarianism Seriously’, this issue, 354Google Scholar.

7 See, on the role of the maximin decision rule in Rawls's theory, Strasnick, Stephen, ‘Social Choice and the Derivation of Rawls's Difference Principle’, The Journal of Philosophy, lxxiii (1976), 85–99CrossRefGoogle Scholar.

8 Jonathan Wolff alludes to the point that the worst off may in certain circumstances bear some responsibility for their position as the basis for an exception to his own variant on maximin. See ‘Rational, Fair, and Reasonable’, this issue, 271.

9 Kelly, 342.

10 See Feinberg, Joel, ‘The Rights of Animals and Unborn Generations’, Philosophy and Environmental Crisis, ed. Blackstone, William T., Athens, Ga., 1974, pp. 43–68Google Scholar, who says that animals are ‘incapable of being moral subjects, of acting rightly or wrongly in the moral sense, of having, discharging, or breeching [sic] duties and obligations’, p. 46.

11 Kelly, 346–7.

12 Ibid., 344.

13 Munzer, Stephen R., A Theory of Property, Cambridge, 1990, p. 200CrossRefGoogle Scholar. The criterion is named for Nicholas Kaldor and J. R. Hicks, who both proposed the criterion in 1939 (see ibid., p. 200 n. 13 for references).

14 Ibid.

15 Posner, Richard A., The Economics of Justice, Cambridge, Mass., 1981Google Scholar.

16 See esp. Kelly, 353.

17 The reference here is to a famous article by Christopher Stone arguing that courts should be able to take account of the interests of trees (etc.) in their own right rather than as a by-product of the interests of human beings. See Stone, Christopher D., ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’, Southern California Law Review, xlv (1972), 450–501Google Scholar.

18 Kelly, 354–5.

19 Wolff, 265.

20 Ibid.

21 Ibid., 268–9.

22 Ibid.

23 Ibid., 267.

24 Ibid., 269.

25 This is a good place to acknowledge Simon Caney's helpful comments on the paper by Jonathan Wolff, and also on those of John Horton and Andrew Mason.

26 Cecil, David, Max, [1964], London, 1983, p. 317Google Scholar.

27 Matravers, Matt, ‘What's “Wrong” in Contractualism?’, this issue, 332Google Scholar.

28 This bears on Simon Caney's helpful discussion of two alternative ways of understanding the relation between justice and the reasonable rejection criterion. As he surmises, I adhere to the equivalence version rather than the justificatory version of the relation. See Caney, Simon, ‘Impartiality and Liberal Neutrality’, this issue, 280–3Google Scholar.

29 Horton, John, ‘The Good, the Bad, and the Impartial’, this issue, 322Google Scholar.

30 More precisely, balancing is appropriate unless a restriction could reasonably be rejected. Examples would be the abuse of an anti-litter law to prohibit the handing out of political literature or the invocation of offence to limit freedom of speech in matters of religion.

31 Horton, 323, n. 28.

32 Caney, 277–8.

33 Caney, 287–92; Mason, Andrew, ‘Justice, Contestability, and Conceptions of the Good’, this issue, 301–5Google Scholar.

34 Mason, 305.

35 See e.g., Caney, 288, n. 21.

36 Barry, , Justice as Impartiality, p. 103Google Scholar.

37 Ibid.

38 Ibid.

39 Horton, 311.

40 Ibid.

41 Justice as Impartiality, p. 103, emphasis supplied.

42 Horton, , 311, quoting Justice as Impartiality, pp. 200–1Google Scholar.

43 Ibid., 316, n. 15.