Alistair Murray Macleod

In lieu of an abstract, here is a brief excerpt of the content:74. RULE-UTILITARIANISM AND HUME'S THEORY OF JUSTICE One of the striking features of Hume's theory of justice is the narrowness of the range of judgments it is designed to illumine. For Hume the paradigms of judgments of justice are judgments about particular actions, not judgments about laws or institutions or states of affairs. Moreover, the characterization of actions as just or unjust is possible according to Hume only in a certain kind of legal context - namely when questions arise about the conformity of conduct to a certain class of legal rules, those which comprise the law of property. In such contexts, actions are said to be just if they are in accordance with property rules and unjust if they are contrary to them. Of particular interest is the exclusion of judgments about the law - and in particular judgments about property rules - from the class of judgments of justice. Hume recognizes, of course, that we often have occasion to evaluate rules of law, including the rules which make up the law of property. When such judgments have to be made, however, it is never their justice or injustice which is in question for Hume. The fact that he often refers to the rules of property as "rules of justice" may seem to be inconsistent with this view, but it is not. When Hume refers to property rules in this way, it is not because he wishes to signify that the rules themselves satisfy some principle of justice, but rather because he conceives of them as embodying our criteria for the making of judgments about the justice of particular acts. Property rules cannot be viewed as "rules of justice" in this sense without satisfying some supralegal standard of acceptability. But the standard in quesrtion is social utility, not justice. Property rules qualify as "rules of justice", then, not because they are just but rather because they serve the public interest. Like some contemporary rule-utilitarians, Hume expressly disallows the question whether particular acts of 75. justice are socially useful. Or rather, to be more accurate, he claims that the disutility of particular acts sanctioned by property law counts neither against their being regarded as "acts of justice" nor against recognition of the obligation to perform them. Neither the characterisation of particular actions as "just" nor the stringency of the obligation to perform them is affected by the discovery that they might have to be said not to be in the public interest if attention were to be concentrated on the special circumstances of their performance. The reason is that it is a mistake, Hume thinks, for such acts to be viewed in isolation from other similar acts. Rather they must be seen as forming part of a scheme or system - a scheme or system which, taken in its entirety, serves the public interest. Hume's theory of justice thus embodies an unusually neat distinction between questions of justice and questions of social utility. When questions of justice are allowed to arise which is when the justice of particular acts is to be determined - questions of social utility do not arise. And when questions of social utility are allowed to arise - as they do when property rules have to be evaluated - questions of justice do not arise. Despite the sharp distinction he draws between justice and utility, Hume's theory of justice is clearly a utilitarian one. It is indeed a veritable prototype of the kind of theory now dubbed "rule-utilitarian". As such it has obvious attractions for would-be utilitarians, if it can be made to work. It would enable utilitarians to offer an account of judgments of justice in terms of rules enjoying the status of secondary principles of morality. Justice judgments could be represented as a special sub-class of moral judgments and the principles regulating them as subordinate to, and derivable from, the principle of utility. The vexed question of the relation between justice and utility would thereby be resolved without challenge to the assumption that they are different values and also without 76. abandonment of the claim that the principle of utility is the only underivative moral principle. By contrast, utilitarians for whom the...

According to Libertarians, the freedom of individuals to make crucial lifeshaping choices is effectively and adequately protected if other individuals and agenciesrefrain from interfering with their freedom and if the state takes steps to ensure that such interference is either prevented or punished. This paper presents a “Liberal” critique of this position, in three stages. First, prevention of interference is only one of several conditions that must be fulfilled if an individual’s lot in life is to be legitimately traceable to his or her choices. Second, the additional conditions resemble prevention of interference in that their fulfillment cannot be secured by the unaided efforts of individuals. Third, these further conditions resemble prevention of interference in that their fulfillment cannot be secured on an equitable basis for all if the state does not assume responsibility for trying to ensure their fulfillment. The argument (of non-anarchist Libertarians) that the state has a role to play in securing the fulfillment of the non-interference condition ought consequently to be extended to support the view that securing the fulfillment of the otherconditions of freedom of choice is also a legitimate function of the state

Direct comparison of the ostensibly competing principles embedded in rival theories of Justice is often complicated by differences of view as to the nature and scope of the concrete Judgments a theory of Justice must attempt to illumine. Aristotle's official view, for example, is that Justice is a disposition or character trait. This commits him to scrutiny of Judgments about the Justice of particular actions since it is actions which serve to reveal, and to help form, the disposition in question. But it also stands in the way of any proper recognition of the fact that the competing principles of Justice he examines apply in the first instance neither to actions nor to dispositions but to states of affairs or situations: actions are Just for Aristotle when they help to bring about a Just distribution.

In his recent book Rescuing Justice and Equality (Harvard University Press, 2008), G. A. Cohen returns to the defense of his critique of the Rawlsian doctrine of the “basic structure as subject.” This doctrine provides the centerpiece of what Rawls has to say about the domain of distributive justice—that is, about the sorts of things judgments of distributive justice are about and about the ways in which these judgments are interconnected. From the extensiveness of Cohen’s critique of this doctrine, it seems clear that he wants to take a very different view of the boundaries and contours of this domain. However, despite the characteristic clarity and precision with which he describes the Rawlsian doctrine and despite the trenchancy of his criticisms, it is still a matter of some difficulty determining the respects in which he and Rawls are actually in disagreement.

Professor Cragg objects to my contention that when judgments about the justice of actions can be paired with judgments about the justice of the states of affairs in which they eventuate it is the latter and not the former which are logically fundamental. He concedes that the justice of actions cannot, in these circumstances, be determined wholly independently of the justice of the states of affairs they help bring about — ‘ … how could an action be evaluated as Just or unjust in the absence of an evaluation of the situation which it was designed to bring about?’ — yet he takes issue with my claim that judgments about the justice of states of affairs can be made ‘without any detour’ through questions about the justice of the actions which bring them about. According to the intermediate position he prefers, judgments about the justice of actions and judgments about the justice of situations are ‘inextricably intertwined.’

According to Libertarians, the freedom of individuals to make crucial lifeshaping choices is effectively and adequately protected if other individuals and agenciesrefrain from interfering with their freedom and if the state takes steps to ensure that such interference is either prevented or punished. This paper presents a “Liberal” critique of this position, in three stages. First, prevention of interference is only one of several conditions that must be fulfilled if an individual’s lot in life is to be legitimately traceable to his or her choices. Second, the additional conditions resemble prevention of interference in that their fulfillment cannot be secured by the unaided efforts of individuals. Third, these further conditions resemble prevention of interference in that their fulfillment cannot be secured on an equitable basis for all if the state does not assume responsibility for trying to ensure their fulfillment. The argument that the state has a role to play in securing the fulfillment of the non-interference condition ought consequently to be extended to support the view that securing the fulfillment of the otherconditions of freedom of choice is also a legitimate function of the state

In section I, I identify several mini-theses embedded in Amartya Sen’s theory of human rights – such theses as that human rights are moral, not legal, rights, that nevertheless they are not rights that are awaiting transformation into legal rights, that an expansive doctrine of human rights can incorporate a broad swath of rights without merely mimicking the catalogues in post-Second World War declarations and covenants, and that not all the obligations generated by human rights are ‘perfect’ obligations.In section II, I argue that, both because ‘freedom’ has many interpretations and because not all human freedoms, even when they are life-enhancing, are to be protected as human rights, the distinctive features of Sen’s version of a freedom-emphasizing doctrine would be clearer if the preferred interpretation of ‘freedom’ and the particular human freedoms to be protected were more explicitly identified.While Sen’s doctrine of human rights is a freedom-emphasizing doctrine, its distinctive features – vis-à-vis competing freedom-focused accounts – would be more clearly etched if it were made clearer what the sense is in which it stresses protection of important human freedoms, especially since he concedes that not all freedoms, even when they are life-enhancing for human beings, should be protected as human rights.

Some say that public policy can be made without the benefit of theory--that it emerges, instead, through trial-and-error. Others see genuine philosophical issues in public affairs but try to resolve them through fanciful examples. Both, argues Robert E. Goodin, are wrong. Goodin--a political scientist who is also an associate editor of Ethics--shows that empirical and ethical theory can and should guide policy. To be useful, however, these philosophical discussions of public affairs must draw upon actual policy experiences rather than contrived cases. Further, they must reflect the broader social consequences of policies rather than just the dilemmas of personal conscience. Effectively integrating the literatures of social science, policy science, and philosophy, Goodin provides a theoretically sophisticated yet empirically well-grounded analysis of public policies, the principles underlying them, the institutions shaping them, and the excuses offered for their failures. This analysis is enhanced by the author's discussion of such specific cases as the disposal of nuclear wastes and the priority accorded national defense--cases that illustrate Goodin's theoretical and methodological framework for approaching policy issues.