Binding Paperback. Publishing year Language English. Article no. Area of expertise Critique "The work offers an excellent reconstruction of Hagerstrom's work and life, and presents his personal and intellectual evolution balancing perfectly the chronological and the systematic dimensions.
A Real Mind The Life And Work Of Axel Hagerstrom
Hierro, Professor of Jurisprudence, Faculty of Law, Universidad Autonoma de Madrid, Spain "The book is excellently-sourced, always well-argued, and makes a case for a revival of interest in Hagerstrom. I believe this to be important. Hagerstrom is relevant, insightful and interesting. Write a review. Philosophiegeschichte QDH. Axiological Nihilism. Law and Power. Legal Science. Scandinavian Realism.
Ernst Cassirer (1874-1945)
Validity of Law. Political Philosophy. Scandinavian realism. Mindus, Patricia. First, each individual knows that he has the capacity to form, pursue, and revise a conception of the good, or life plan. Exactly what sort of conception of the good this is, however, the individual does not yet know. It may be, for example, religious or secular, but at the start, the individual in the original position does not know which.
Second, each individual understands him or herself to have the capacity to develop a sense of justice and a generally effective desire to abide by it. Knowing only these two features of themselves, the group will deliberate in order to design a social structure, during which each person will seek his or her maximal advantage. The idea is that proposals that we would ordinarily think of as unjust — such as that blacks or women should not be allowed to hold public office — will not be proposed, in this Rawls' original position, because it would be irrational to propose them.
Presumably it is irrational since such criteria are invisible behind the curtains covering the others. Rawls develops his original position by modeling it, in certain respects at least, after the "initial situations" of various social contract thinkers who came before him, including Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Iain King has suggested the original position draws on Rawls' experiences in post-war Japan, where the US Army was challenged with designing new social and political authorities for the country, while "imagining away all that had gone before.
In social justice processes, each person early on makes decisions about which features of persons to consider and which to ignore. Rawls's aspiration is to have created a thought experiment whereby a version of that process is carried to its completion, illuminating the correct standpoint a person should take in his or her thinking about justice. If he has succeeded, then the original position thought experiment may function as a full specification of the moral standpoint we should attempt to achieve when deliberating about social justice. Despite the amount of attention received by Rawls's original position, equally if not more important is his concept of "reflective equilibrium".
This latter concept is Rawls's account of how deliberation about morality in general, but justice in particular, should proceed, and it serves as the metatheoretical frame within which the concept of the original position is situated. Reflective equilibrium is essentially a three-step process whereby one 1 identifies a group of considered judgments about justice intuitions about justice that strike one as relatively secure, such as that slavery and religious persecution are unjust , 2 attempts to explain and justify these considered judgments by discovering what relatively more abstract principles of justice can serve as their foundation, and 3 addresses any lack of fit between the principles one has arrived at and considered judgments about justice other than the group from which one started.
To give an example: suppose I begin with a considered judgment that a restaurant's denying service to a person simply because he is black or Jewish is unjust, and proceed to account for this judgment by a principle which says that discrimination based upon nothing but race is unjust, or alternatively that from the standpoint of justice, race is a morally irrelevant feature of a person. But then suppose I have another considered conviction about the justice of affirmative action; let's say I think race is a feature of a person that institutions of higher learning should take account of in their admissions procedures.
If my conception of justice is to be internally coherent, I will be forced to negotiate the apparent conflict between the principle of justice I used to account for my initial considered judgment, on the one hand, and the considered judgment with which the principle conflicts, on the other. Rawls held that there will inevitably be give and take between a person's first-order judgments about justice and the higher order commitments that take the form of principles of justice. There is a sense that Rawls's concept of reflective equilibrium is nothing other than a description of our common sense method of reasoning about morality.
But Rawls's explicit endorsement of this method cut against the philosophical grain of his time in at least one important respect, for it amounts to a rejection of the absolute priority of principles on display in a work like Robert Nozick's Anarchy, State, and Utopia In that work, an abstract moral principle introduced at the beginning of the work — the absolute right of individuals to self-ownership, property, and contract — supersedes all other moral intuitions, such as equal opportunity employment, or the availability of non means based medical care.
A Real Mind: The Life and Work of Axel Hägerström (Law and Philosophy Library) - PDF Free Download
By refusing to elevate principles over concrete considered judgments, Rawls's concept of reflective equilibrium may be interpreted as a reaction against and prophylactic to the principle-heavy arguments of political philosophers past and present. However, it can be added that the concept of 'reflective equilibrium' as well as the expression itself was originally introduced by Nelson Goodman's "New Riddle of Induction" in Chapter 3 of Goodman's book Fact, Fiction and Forecast.
Rawls derives two principles of justice from the original position. The first of these is the Liberty Principle, which establishes equal basic liberties for all citizens. Rawls argues that a second principle of equality would be agreed upon to guarantee liberties that represent meaningful options for all in society and ensure distributive justice. For example, formal guarantees of political voice and freedom of assembly are of little real worth to the desperately poor and marginalized in society.
Demanding that everyone have exactly the same effective opportunities in life would almost certainly offend the very liberties that are supposedly being equalized. Nonetheless, we would want to ensure at least the "fair worth" of our liberties: wherever one ends up in society, one wants life to be worth living, with enough effective freedom to pursue personal goals. Thus participants would be moved to affirm a two-part second principle comprising Fair Equality of Opportunity and the famous and controversial difference principle. This second principle ensures that those with comparable talents and motivation face roughly similar life chances and that inequalities in society work to the benefit of the least advantaged.
Rawls held that these principles of justice apply to the "basic structure" of fundamental social institutions such as the judiciary, the economic structure and the political constitution , a qualification that has been the source of some controversy and constructive debate see the work of Gerald Cohen. Rawls further argued that these principles were to be 'lexically ordered' to award priority to basic liberties over the more equality-oriented demands of the second principle. This has also been a topic of much debate among moral and political philosophers.
Finally, Rawls took his approach as applying in the first instance to what he called a "well-ordered society In this respect, he understood justice as fairness as a contribution to "ideal theory", the determination of "principles that characterize a well-ordered society under favorable circumstances". Much recent work in political philosophy has asked what justice as fairness might dictate or indeed, whether it is very useful at all for problems of "partial compliance" under "nonideal theory".
In Political Liberalism , Rawls turned towards the question of political legitimacy in the context of intractable philosophical, religious, and moral disagreement amongst citizens regarding the human good. Such disagreement, he insisted, was reasonable — the result of the free exercise of human rationality under the conditions of open enquiry and free conscience that the liberal state is designed to safeguard. The question of legitimacy in the face of reasonable disagreement was urgent for Rawls because his own justification of Justice as Fairness relied upon a Kantian conception of the human good that can be reasonably rejected.
If the political conception offered in A Theory of Justice can only be shown to be good by invoking a controversial conception of human flourishing, it is unclear how a liberal state ordered according to it could possibly be legitimate. The intuition animating this seemingly new concern is actually no different from the guiding idea of A Theory of Justice , namely that the fundamental charter of a society must rely only on principles, arguments and reasons that cannot be reasonably rejected by the citizens whose lives will be limited by its social, legal, and political circumscriptions.
In other words, the legitimacy of a law is contingent upon its justification being impossible to reasonably reject. This old insight took on a new shape, however, when Rawls realized that its application must extend to the deep justification of Justice as Fairness itself, which he had presented in terms of a reasonably rejectable Kantian conception of human flourishing as the free development of autonomous moral agency.
The core of Political Liberalism, accordingly, is its insistence that, in order to retain its legitimacy, the liberal state must commit itself to the "ideal of public reason". This roughly means that citizens in their public capacity must engage one another only in terms of reasons whose status as reasons is shared between them. Political reasoning, then, is to proceed purely in terms of "public reasons". For example: a Supreme Court justice deliberating on whether or not the denial to homosexuals of the ability to marry constitutes a violation of the 14th Amendment's Equal Protection Clause may not advert to his religious convictions on the matter, but he may take into account the argument that a same-sex household provides sub-optimal conditions for a child's development.
This is because reasons based upon the interpretation of sacred text are non-public their force as reasons relies upon faith commitments that can be reasonably rejected , whereas reasons that rely upon the value of providing children with environments in which they may develop optimally are public reasons — their status as reasons draws upon no deep, controversial conception of human flourishing.
Rawls held that the duty of civility — the duty of citizens to offer one another reasons that are mutually understood as reasons — applies within what he called the "public political forum". This forum extends from the upper reaches of government — for example the supreme legislative and judicial bodies of the society — all the way down to the deliberations of a citizen deciding for whom to vote in state legislatures or how to vote in public referenda.
Campaigning politicians should also, he believed, refrain from pandering to the non-public religious or moral convictions of their constituencies. The ideal of public reason secures the dominance of the public political values — freedom, equality, and fairness — that serve as the foundation of the liberal state. But what about the justification of these values?
A Real Mind: The Life and Work of Axel Hägerström (Law and Philosophy Library)
Since any such justification would necessarily draw upon deep religious or moral metaphysical commitments which would be reasonably rejectable, Rawls held that the public political values may only be justified privately by individual citizens. The public liberal political conception and its attendant values may and will be affirmed publicly in judicial opinions and presidential addresses, for example but its deep justifications will not. The task of justification falls to what Rawls called the "reasonable comprehensive doctrines" and the citizens who subscribe to them. A reasonable Catholic will justify the liberal values one way, a reasonable Muslim another, and a reasonable secular citizen yet another way.
One may illustrate Rawls's idea using a Venn diagram: the public political values will be the shared space upon which overlap numerous reasonable comprehensive doctrines. Rawls's account of stability presented in A Theory of Justice is a detailed portrait of the compatibility of one — Kantian — comprehensive doctrine with justice as fairness.
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