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Justice, Contestability, and Conceptions of the Good*

Published online by Cambridge University Press:  26 January 2009

Andrew Mason
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Extract

Brian Barry's Justice as Impartiality is a highly enjoyable and rewarding book. It throws new light on some familiar theories of justice, and shows how the idea that principles of justice are those principles which no one could reasonably reject can yield prescriptions for constitutional design. But I shall argue that Barry's defence of his theory is less robust than he thinks, and more generally that there is reason to suppose that principles of justice are as contestable as conceptions of the good.

Type
Research Article
Information
Utilitas , Volume 8 , Issue 3 , November 1996 , pp. 295 - 305
Copyright
Copyright © Cambridge University Press 1996

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Footnotes

*

I would like to thank Brad Hooker and Simon Caney for their help with this paper.

References

1 Barry, B., Justice as Impartiality, Oxford, 1995Google Scholar. All page references are to this text, unless otherwise stated.

2 See Rawls, J., Political Liberalism, New York, 1993, especially LI and IVGoogle Scholar.

3 Barry's argument is not always easy to follow. My reconstruction of it relies heavily on §§ 26 and 27.

4 Barry sometimes states the thesis of scepticism slightly differently. For example, he says that ‘no conception of the good can justifiably be held with a degree of certainty that warrants its imposition on those who reject it’ (p. 169). This formulation seems to me unhelpful for it invites a confusion between two different issues: first, can it ever be legitimate to be certain that some particular conception of the good is correct? and second, if it is always illegitimate to be certain that some particular conception of the good is correct, does it follow (perhaps in conjunction with other premises) that it would be unjustified to impose it on others who reject it?

5 Following Barry, I assume that there is no important difference between the claim that there is no conception of the good that nobody could reasonably reject, and the claim that it is not the case that there is a conception of the good which everyone must reasonably accept: see pp. 69–70.

6 Rawls, , Political Liberalism, p. 175Google Scholar.

7 See S. Caney, ‘Impartiality and Liberal Neutrality’, this issue.

8 But does not Barry require the stronger claim that any idea of the good can be reasonably rejected since otherwise he can have no objection to basing principles of justice on ideas of the good that no one can reasonably reject? I think not. Barry need not object to basing justice as impartiality on some ideas of the good, or judgements about the good, so long as those ideas or judgements do not amount to a conception of the good, i.e. a more or less determinate conception of how to live. Here I am implicitly opposing Simon Caney's claim that if we can find ideas of the good that cannot be reasonably rejected, then Barry's argument for neutrality between conceptions of the good is impugned (see Caney, this issue).

9 Miller, R., Moral Differences: Truth, Justice and Conscience in a World of Conflict, Princeton, 1992, p. 104CrossRefGoogle Scholar.

10 See ibid., p. 112. Miller's talk of a framework of moral inquiry can be misleading. It would be wrong to suppose that it always consists, in part, of a principle for ordering different goods (or bads) in terms of their relative importance.

11 See Rawls, , Political Liberalism, pp. 54–8Google Scholar.

12 Rawls wishes to remain uncommitted to Nagel's view that there are basic conflicts of value in which there seem to be decisive and sufficient (normative) reasons for two or more courses of action, on the grounds that this is part of a comprehensive moral doctrine (see ibid., p. 57 n. 10). Yet he endorses Berlin's thesis that there is a plurality of values that inevitably conflict (ibid., pp. 57, 197). For the reason given in the text, it is hard to avoid the conclusion that this thesis must also be part of a comprehensive moral doctrine.

13 See Mackie, J. L., Ethics: Inventing Right and Wrong, Harmondsworth, 1977, pp. 38–42Google Scholar.

14 See Wiggins, D., Needs, Values, Truth: Essays in the Philosophy of Value, Oxford, 1991, pp. 149–51, 340Google Scholar.

15 Wiggins writes: ‘if something is so either it must be capable of impinging on others in the way it impinged on me or I shall have in principle to account for its inaccessibility to all others. And if I could have accounted for that, then I should never have been disturbed in the first place by disagreement. If however there were no prospect at all that arguments founded in what made me think it true should have non-random efficacy in securing agreement about whether p, I should be without protection from the idea that (unless I was simply wrong) there was just nothing at issue’ (ibid., p. 149).

16 See McDowell, J., ‘Values and Secondary Qualities’, Morality and Objectivity: A Tribute to J. L. Mackie, ed. Honderich, T., London, 1985, pp. 141–62Google Scholar; Brink, D., Moral Realism and the Foundations of Ethics, Cambridge, 1989, ch. 7CrossRefGoogle Scholar; Lovibond, S., Realism and Imagination in Ethics, Oxford, 1983, especially §§ 12–13Google Scholar.

17 Whether the role I am giving to the notion of judgement really is inconsistent with Wiggins's claims about the concept of truth depends upon what goes into the specification of favourable conditions. If they include the conditions (whatever they are) that are conducive to a person's having perfect judgement, then a defender of scepticism might agree that under favourable conditions there would be a tendency to converge on a particular conception of the good. If people have perfect judgement, and all other conditions under which they make a judgement are ideal, it is hard to see what explanation could be given of a failure to converge with one another if there is some moral truth at issue. But that concession does not undermine scepticism, for a defender of it can hold that even when a person has a correct conception of the good, others with imperfect judgement might always reasonably reject it and the arguments for it, even if all other conditions are ideal.

18 Barry sometimes says that the agreement motive arises from a desire to live in a society whose members all freely accept its rules of justice and its major institutions. For reasons which will become apparent, I would prefer to say that the motive arises from a desire to live in a society whose members all freely accept its basic principles and its major institutions. Barry states the agreement motive in this sort of way in various places (see e.g. p. 168) and I do not believe that there is any evidence to show that it is the first mentioned desire rather than the second mentioned one which is widely shared.

19 As Barry points out, both utilitarian and Thomist theories of justice conform to this model, despite the very different principles which are constitutive of them: ‘within these theories, the relation between justice and morality is a simple one. In both cases, we start with a conception of the good that is to be achieved, as far as possible. We then assess potential rules of justice by their conduciveness to the achievement of that good’ (p. 76).

20 It is worth recalling here that Scanlon's contractualist account was intended as an account of the nature of moral wrongness, not as an account of justice in particular: see Scanlon, T. M., ‘Contractualism and Utilitarianism’, Utilitarianism and Beyond, ed. Sen, A. and Williams, B., Cambridge, 1982, pp. 103–28CrossRefGoogle Scholar. See also Barry, , Justice as Impartiality, p. 68Google Scholar.

21 Rawls, J., A Theory of Justice, Oxford, 1971, p. 3Google Scholar.

22 Barry, concedes that ‘[t]here is no prospect of finding an uncontentious theory of justice if that means finding a theory capable of leaving unchallenged views of the world such as that embodied in Thomism’ (p. 123)Google Scholar. But he wants to insist that if someone shares the agreement motive, and accepts scepticism, which he thinks there is compelling reason to do (pp. 171, 174), then they are logically committed to attempting to find neutral principles and procedures.

23 See Barry, , ‘The Obscurities of Power’, Government and Opposition, x (1975), 250–4CrossRefGoogle Scholar.

24 See my Explaining Political Disagreement, Cambridge, 1993, ch. 2Google Scholar.

25 Here I echo John Horton's Sentiments: see J. Horton, ‘The Good, the Bad, and the Impartial’, this issue.

26 Cf. Caney.

27 See Barry, B., ‘John Rawls and the Search for Stability’, Ethics, cv (1995), esp. 896ffGoogle Scholar.

28 Barry thinks that liberal democratic stability is possible provided either that dogmatists (i.e. those who reject scepticism) at least accept something akin to Rawls's first principle of justice, or that there are sufficiently small numbers of them that they can be contained: see ibid., 904–5, 910.