What is Law? What is Politics? PDF

**What is Law? What is Politics?** **2 Views on Law: Descriptive VS Normative** - **Descriptive Sense: Law as it *IS* (just facts)** - Ex.) Isaac Newton's Law of Gravitational Attraction - It's a universal law that describes how physical matters relate to one anothe...

**What is Law? What is Politics?** **2 Views on Law: Descriptive VS Normative** - **Descriptive Sense: Law as it *IS* (just facts)** - Ex.) Isaac Newton's Law of Gravitational Attraction - It's a universal law that describes how physical matters relate to one another in space - ***[Law has to match reality]*** - ***[BUT]* whenever the law fails to grasp the facts (is infringed), it becomes invalid** - **Normative Sense: Law as it *SHOULD BE* (prescribes how reality should be)** - ***[Reality has to match the law]*** (not the other way around) - The law is no less valid simply because it's infringed - **Hans Kelsen: EFFICACY of law** - Law that fails to regulate political and social life is ***[defective]*** - When a law is habitually infringed, there's something wrong with that law **What is Politics?** - Politics came from the need for societies to prioritize certain goals (because they can't do everything at once) - ***[Politics is about DECIDING which goals to prioritize]*** - Ex.) The EU's fiscal policy: Should we prioritize fiscal balancing OR economic growth? - Some people (like Carl Schmitt) think that the goals of the strongest are prioritized **What is Law?** - ***[Law = A normative order that allows social life and politics to take place]*** - **The function of law:** - **Elementary (primitive) view of politics:** There's a problem ⇒ something needs to be done ⇒ opinions are heard ⇒ options are assessed ⇒ a decision is made ⇒ the decision is implemented - This can be democratic OR undemocratic - **Law** = a system of rules that enables communal will and regulates the interactions between GROUPS (members of the community) by ***[establishing RIGHTS and OBLIGATIONS]*** - Ex.) Nazi Germany: - DIDN'T abolish elections BUT changed the election laws - They gave a list of 400 candidates for the parliament and the only options were "Yes, I agree" and "No, I disagree" **What are Rules?** - *[Rules = normative constructs that regulate actions]* **Regulative VS Constitutive Rules** (John Searle and John Rawls)**:** - **1) Regulative Rules:** Rules that regulate actions & behaviors which ***[exist independently]* of the rules themselves** - Ex.) Traffic laws - People would move around anyway even without traffic lights, though it would be less safe - When you run a traffic light, you're still driving - **1.1) The action has to exist prior to (independently) of the rule** - **1.2) Freedom is *[LIMITED]* by regulative rights** - Ex.) Every time you stop at a traffic light, it limits your freedom and takes your judgement away - **2) Constitutive Rules:** Rules that CREATE the actions & behaviors which they then regulate - Ex.) Sports rules; board game rules - These rules DON'T regulate previously existing behaviors / conducts - The rules have ***[created]*** the games - When you violate ***[Chess rules]***, you aren't playing Chess anymore - **[2.1) *The action DOESN'T exist without the rule*]** - **2.2) Freedom is *[NOT]* limited by constitutive rules** - **Constitutive and Constitutional Rules in the Constitution:** - The constitution has BOTH Regulative and Constitutive rules - Ex.) Regulative: Rules regulating public assembly - Borderline case: VOTING - Could be treated as either regulative OR constitutive - Constitutive element: Formal procedure for valid voting - Regulative element: Expressing consent - People would express consent anyway, like by raising hands or shouting - ***[RIGHTS count as constitutive rules (since they aren't limiting freedom)]*** - **Constitutions: Are they *regulative* rules or *constitutive* rules?** - Everything that happens is constitutional, and if nothing happens, that would still be constitutional! **Main Topic of Debate:** - 1\) Where does law come from? - 2\) What makes law valid? - What distinguishes law from a set of valid norms and a set of norms that merely pretends to be law? - **Scott Shapiro's example: Lex and Phil** - Lex (tribe leader) tells the tribe that he's found the solution to solve conflicts between members of the tribe - The solution: Lex will come up with rules to address the issues - Everyone says ok BUT a legal philosopher named Phil objects - There has to be a prior rule that tells Lex he has the right to make rules - Otherwise it's an arbitrary exercise of power (like the gunman situation), which isn't valid - Lex says he'll make a Rule \#1 that enables him to make the rest of the rules - Phil says that won't work since there's no previous rule to make a Rule \#1 in the first place - Lex proposes to have everyone vote to accept his rules - Same problem: There's no rule that empowers the tribe members to transfer the power to make rules to Lex - Lex ignores Phil and makes the rules anyway, so the laws are born - **The moral of the story: It's a "chicken-and-egg" problem** - Ex.) US Constitution - Who determines the validity of the constitution? - It was ratified by the required 3/4ths of the original 13 states - BUT there wasn't a prior rule that conferred authority to the 13 states to ratify the constitution - Article 7 set this up BUT it's the same problem as Lex making a Rule \#1 - **The 2 Solutions:** - **1) Hans Kelsen's *Grundnorm*:** - **Prioritizes *[NORMS]*** - **2) Legal Positivism: Law is the product of the self-authorized will of the sovereign** (also Schmitt's idea) - **Prioritizes the *[SOVEREIGN]*** - Thomas Hobbes, John Austin, etc. **Positivism VS Justice-tracking Law** **What Makes a Law Valid?** - **1) Legal Positivism: The ORIGIN of the law** - Depends on the ***[validity of the authority]*** / sovereign who issued the law, NOT the content of the law - Thomas Hobbes: 3 principles - 1\) "What pleases the emperor has the force of law" - 2\) "The emperor is not bound by law" - 3\) "Give to everyone his due" (?) - ***[5 assumptions of Legal Positivism:]*** - **1) Law is MAN-MADE** - **2) Separation of law and morality** - **3) Pure analysis of legal concepts, distinct from other subjects** - **4) It's a CLOSED logical system** - Correct decisions can be deduced from predetermined legal rules by logical rules alone - **Max Weber: Rule of law = state of affairs in which the legal consequences of ANY action can be calculated** - ***[ANY action can be described as legal or not legal]*** - **5) MORAL judgement CAN'T be established by logical roots** - But LEGAL judgement ***[can]*** - **2) Justice-tracking Law: The CONTENT (merit / substance) of the law** - Difference with natural law: Justice MATTERS - In natural law, the law has to be moral but not necessarily just **3 Versions of Positive Law:** **1) Thomas Hobbes: Contract Theory** - **Hobbes's 3 Main Ideas:** - 1\) Justice and injustice come from the law - 2\) Law is a command with sanctions issued by a sovereign - 3\) Sovereignty = ULTIMATE, unrestricted power (NOT under the law) - Social order is MAN-MADE (it's actually an advantage for humans) - State of Nature: CONFLICT - Due to the selfish desires of each human and things like jealousy, rivalry, greed, glory-seeking, etc. - "War of all against all" (NOT all at the same time, but generally) - Unless peace is established, there's an assumption of war - Life in this state of nature would be "poor, solitary, and short" - "*Auctoritas non veritas facit legem*" (authority, not truth, makes the law) - Without an authority, there is no law - Without law, there is no injustice - People CREATE a sovereign and voluntarily give authority up to the sovereign - The Leviathan (the authority) gives the laws - It needs A SWORD (sanctions) to enforce its laws - Sovereign ***[absolute power]*** (NO authority is above the sovereign) - BUT this power isn't all-encompassing - People are still free to act in matters where the sovereign is silent (they have residual powers) - **The Rights of the Sovereign** (19 in total)**:** - 1\) The legal order is IRREVERSIBLE (legally) - There's no legal way of breaking it - 2\) Being above the law - 3\) CANNOT be tried / condemned for his actions - 4\) Property is a POSITIVE creation (man-made) - There's no natural right to property - When you're dispossessed of property, you have no right to it - 5\) NO separation of powers (the sovereign has all of the powers) - 6\) Assessing whether war is for the public good - Etc. etc. - The sovereign's rights are BOTH prescriptive and normative - **Fundamental Laws:** - Fundamental law = if it's taken away, the entire commonwealth is destroyed - No one can repeal a law if not the sovereign himself - **Validity of Laws:** - **Tacit Consent:** If no one objects to a law, that means everyone generally accepts it - Norms that are met with silence are sort of legitimized in that way **2) John Austin: Command Theory of Law** - ***[Law = a command from a sovereign backed with sanctions]*** - The sovereign must ACTUALLY be able to inflict sanctions - **Habitual Obedience:** - The sovereign doesn't habitually obey anyone else - The sovereign is the SOURCE of authorization - There doesn't have to be a norm above him - ***[There DOESN'T have to be a rule that establishes the sovereign]*** - **H.L.A. Hart's Criticism:** - 1\) Not all rules are commands since not all rules impose obligations & sanctions - Ex.) Civil law & most things in private law (wills, etc.) - 2\) Problems with the idea of habitual obedience: Habitual obedience doesn't make sense when the king's successor inherits the crown - 2.1) There's no habit of obeying the new king - 2.2) Previous commands continue into the reign of the new king - 3\) There has to be primary norms that empower the sovereign with legislative power - Thought Experiment: Society with NO written laws (just customary laws) - Rules would evolve spontaneously **3) H.L.A Hart: *["In the beginning were primary rules"]* (as opposed to the usual positivist "in the beginning was the sovereign" idea)** - **Primary Rules:** Regulate behaviors - **Secondary Rules:** Regulate Primary Rules - They establish the authorities to regulate particular areas of social life - **1) Rules of Change** - 1.1) Rules that confer powers on individuals or groups to enact legislation - 1.2) Rules that allow you to change your status - Making contracts or wills, getting married, etc. - **2) Rules of Adjudication** - Rules that establish conflict adjudication - Ex.) Establishing courts - **3) Rules of Recognition (can NEVER be questioned; it's the basic aspect of a legal system)** - Rules that decide the validity of a legal system - They authorize certain bodies to recognize new rules as binding - DOESN'T depend on coercion **2 Versions of Natural Law:** **1) Classic Natural Law - John Locke** - Inherits Hobbes's Social Contract Theory - **Legal order = formed by a rational agreement between people in the state of nature** - **Locke's State of Nature: State of liberty with basic freedoms** - Humans have basic intuitions considering certain good or bad actions - There are some basic goods / rights (e.g. life, liberty, and property) that are binding on us  - ***[Individuals have the basic instinct to defend these rights, for themselves and others]*** - Each person acts as the judge in their own case - Leads to inaccurate & inefficient rulings - No concept of 3rd-party adjudication - Westphalian System (state of nature for nations): Every state self-authorizes its choices - ***[International treaties / organizations: Created to act as 3rd-party adjudicators on conflicts between states]*** - *[Without international points of adjudication, human rights violations will be ignored when intervening would be inconvenient for the state]* - **Locke's 2nd Treatise of Government** - ***[People voluntarily create a sovereign to have greater protection of their natural rights]*** - People leave the state of nature because judgement ISN'T impartial in the state of nature (it's determined by self-interest) - Applies directly to contemporary legal theory with the advent of Human Rights Treaties, where certain rights are enshrined and bound to be protected - ***[Sovereign failing to protect rights = worse than state of nature]*** - Better to be in the state of nature than in a commonwealth with unjust laws - Validity of law = judged based on morality (natural law) - ***[Subjects have the obligation to REBEL]*** - **2 Key Points:** - **1) Moving from the state of nature to a commonwealth could WORSEN the state of affairs** - ***[2) Sovereign / lawgiver ISN'T above the law & and must respect the subjects' natural law]*** - Sovereign = NOT absolute & must protect basic rights (otherwise, individuals can rebel) - Hobbesian sovereign (above the law) = NO DIFFERENT from being in the state of nature (adjudication wouldn't be impartial) - The sovereign legislates, passes laws, and judges whether laws are applied correctly, BUT with respect to the fundamental rights - Sovereign should be kept in check by other bodies - ***[Standard for evaluating the justness of laws: NATURAL LAW]*** - **3) Adjudication MUST made be by an impartial third-party** - Otherwise there'd be no difference between the truth and personal beliefs - "I believe I'm in the right, and therefore I am because I judge" - **Who Can Infringe the Law?** - **Hobbes:** Law can only be infringed from below (by the people) since the sovereign's actions are law - **Locke's criticism:** If no one can judge between him and the sovereign, this is basically the state of nature (no impartial 3rd party adjudicator) - **Locke's POV:** The law ***[CAN]*** be broken from above by officials who overstep the limits of their power / authority and infringe rights - ***[By overstepping, the sovereign reinstates the state of nature & gives people the right to rebel]*** - Rebellion should be used prevent a descent into autocracy **2) Contemporary Natural Law - Ronald Dworkin (Anti-Positivist)** - **Validity of law = determined by its moral MERIT** - To understand the law, we need to understand what it ***[OUGHT to say]*** - Some people understand the ***[constitution as a series of rules ]*** - Certain legal principles (ex. no retroactive law) are basic and underlie the functioning of constitutions, whether explicitly stated or not - BUT Dworkin views the ***[constitution as a compound of principles]*** - **Principles VS Rules:** - **1) Rules:** - **1.1) Black and white**; they dictate the result of an action (NO EXCEPTIONS; legal certainty) - Sets out automatic legal consequences once the conditions are met (all-or-nothing) - Ex.) Running a red light = get fined - **1.2) Prioritization;** NO balancing (circumstances don't matter) - Ex.) Running a red light to drive someone to a hospital = still get fined - 1.3) Can easily be enumerated - CLOSED LIST - **2) Principles:** - **2.1)** DON'T dictate a particular result for an action (has exceptions) - ***[A principle "states a reason that argues in one direction, but DOES NOT necessitate a particular decision"]*** - **2.2) Balancing** (NO prioritization) - Principles are BALANCED against each other - ***[No exceptions ⇒ instead, balancing of principles]*** - Ex.) Chess principle where the king can only move 1 space VS Chess principle allowing for castling - The principle allowing for castling is prioritized when castling - This isn't an exception, it's a balancing of principles - Ex.) The principle where you can't profit from an unlawful act (has to be balanced with counter-principles) - Ex.) Case where a grandson didn't inherit his grandfather's properties after murdering him - Ex.) Breaching a contract ⇒ getting a higher-paid job ⇒ forced to pay some compensation ⇒ profit (despite some penalty)  - **2.3)** CAN'T easily be enumerated (there's a LOT of them) - OPEN LIST - Can be written OR unwritten - Some principles can be taken for granted / as universal fact and CAN'T enumerated - Ex.) Not being able to walk through walls - **Justice-tracking: Originalist View VS Dworkin's Living Constitutionalist View** - **Originalist View:** - The law is the LETTER of the law - The law says what the lawmaker intended to say - **Living Constitutionalist View:** - Dworkin says we CAN'T separate the letter of the law and what the law OUGHT to be - The law means nothing until it is interpreted - "The law is silent before interpretation" - ***[DISAGREES with the idea that the law says what the lawmaker intended it to say]*** - - - - - - These factors make the originalist view totally useless, for it is only speculative and presumptive - **Correct interpretation: Making the most of the legal system and potentializing it for the best (through interpretation)** - Ex.) When a movie director chooses an end scene, the correct choice is the one that brings out the full potential **Public VS Private Law** **Main Distinction:** - **Public Law: Concerns the VERTICAL relations between individuals and public institutions (also BETWEEN institutions)** - Ex.) Parliament - Elected Government relation - Institution - Institution relationship types: - Constitutional Law - Criminal Law - Tax Law - International Law - etc. - **Private Law: Concerns the HORIZONTAL relations between individuals** - Includes: - Contract law - Commerical law - Labor law - Family law (in between private AND public law) - **The Distinction in Antiquity:** - Roman Empire: - Public Law = concerns the empire's interests - Private Law = concerns individual interests  - Middle Ages: - Main focus was on Canon Law VS Secular Law **Public Law (Main Focus on Constitutional Law):** **Popular Sovereignty (Demos) VS Lawful Government:** - **Popular Sovereignty:** - 1\) No individual rights - 2\) No due process - The people (majority) decided what would happen - Ex.) You could be exiled by the will of the people - **Democratic Government:** - YES individual rights - Has limits to public authority - Has limits to the will of the people **Hans Kelsen** - **Theories:** - **1) General Theory of Norms: Validity of norms depends on FORM, NOT content** - **Norms = Basic elements of the law** (propositions that can direct behaviors; instruments of social techniques) - **2) *Stufenbau* (Hierarchy of Norms): Norms are validated by HIGHER norms** - ***Grundnorm* (basic norm)** ⇒ Constitution ⇒ Powers ⇒ Laws ⇒ Decrees ⇒ Administrative orders and provisions ⇒ Contracts - The constitution's validity CAN'T be proven by the *constituent power* - Because the constituent power is NOT legal - ***[Kelsen sees the the constituent power as nonsense since it's not part of pure law]*** - **The constitution is validated by the *[Grundnorm]*** - **3) *Grundnorm* = highest norm that gives validity to the constitution** - It's a presupposed concept that serves to validate the constitution (it's entirely theoretical) - Constitution = the product of the will of the people - The grundnorm is ***contentless*** and entirely ***hypothetical*** - ***[The Grundnorm is identical everywhere in the world]*** - The grundnorm isn't real and can't be validated, but that's exactly Kelsen's purpose - He just wants to analyze the validity and normativity of the law, NOT its reality - **4) The state is a *[legal order]* (NOT a political organization)** - It's an organized collection of norms (NOT a loose collection) - There are subordinate norms under superior norms, etc. - ** **Kelsen says that ***[a state IS its law]*** - Every issue can be solved directly within the legal sphere - This is why Kelsen invented Constitutional Justice - ***[The law makes the people (not the other way around)]*** - **Kelsen's Quote \#1: View of the Constituent Power** - ***[The constituent power is EXTRA-LEGAL (outside of the law)]*** - If a revolution succeeds, the new legal order is considered to be valid - A NEW *grundnorm* has been created - Constituent power has been exercised - If a revolution fails, the act of trying to establish a new legal order is an ILLEGAL act (treason) - **Kelsen's Quote \#2: The People** - "The people" = a system of individual legal ***[acts]*** performed by members of the state & regulated by the legal order - NOT the conglomeration of actual persons - ***[It's a collection of legal acts performed by the members of the state]*** - ***["The law makes the people"]*** (not the other way around) - Unity of the people = "the unity of the state's legal order"   - **Kelsen's Quote \#3: Validity of Law** - Validity of laws DOESN'T depend on: - Merit, morality, justice, or any value transcending positive law - This is very close to the legal positivist view - **Kelsen's Quote \#4: Validity of Statutes** - Statutes can only be valid IF it corresponds to the constitution - Can't be valid if it contradicts the constitution - The phrase "invalid statute" wouldn't make sense since a statute can't be a statute if it's invalid - All norms can be *semantically (by way of their meaning)* understood as derivations (expansions) of higher norms **Carl Schmitt** **Main Books:** - First major work: *Political Theology* - "Sovereign is he who decides on the exception" - 1923: *The Crisis of Parliamentary Democracy* - Criticized liberalism and parliamentary democracy - 1927: *The Concept of the Political* (politics = based on the friend-enemy distinction) - 1928: *A Constitutional Theory* - Turned to institutionalism after previously focusing on sovereignty - 1930s - end of WW2: Schmitt focused on criticizing the cosmopolitan liberal order (ex. Woodrow Wilson's presidency, League of Nations, discussions about forming the UN) - 1950: *The Nomos of the Earth* - Defends the old Westphalian system of international relations - Westphalian System = basically a Hobbesian state of nature but among states instead of individuals - States voluntarily form alliances without being forced to by a global framework - Sees a "global legal order" as a very dangerous move - Because it "dehumanizes" the opponent as a criminal **Schmitt's Quote \#1: The Constitution & Validity of Laws** - 1\) Laws (including constitutions) are man-made; they MUST be established by a political will (aka ***[someone]*** has to establish it) - "Constitutions don't fall from trees" - Prof Ferrara - **OPPOSITE of Kelsen's argument:** There must have been a PEOPLE who created the constitution - 2\) Constitutions derive their validity from the authority of the sovereign - ***["In the beginning was the sovereign"]*** (as opposed to Hart's "in the beginning there were primary rules" view) - The sovereign creates the state and the constitution - 3\) The state does not *have* a constitution; ***[the state IS the constitution]*** - The state would disappear if the constitution disappeared; the constitution identifies the state - Ex.) French First Republic, Second Republic, etc. - It became a new republic every time the constitution was changed significantly - "The state *presupposes* the concept of the political" - **Means that the constitution is made *[against]* someone** - To draw a line between who is in and who is out (defines the friend-enemy distinction) - This line could be based on ethnicity (but not necessarily) - The state is a projection of the political (the friend-enemy distinction), NOT the other way around - In everyday politics, the friend-enemy distinction isn't that significant, BUT during states of emergency it is - 4\) The sovereign who creates the constitution comes in 2 forms: - **1) As a sovereign dictator** - It's someone / a body whose authority IS NOT challenged - Ex.) The Constitutional Assembly had the power to make the constitution and no one challenged its authority to speak for the people - **2) As a "lord of exception"** - Somebody who has the power to determine the exception - **Schmitt's Quote \#2:** - **1) Schmitt's 4 concepts / views (NOT types) of the constitution:** - **1) Absolute Constitution** - Encompasses the whole of the state (political unity AND social order) - It's MORE than just a set of legal norms - It's a "form of forms" that ***[DEFINES the state]*** - ***[It's the "soul of the polity" since it provides for continuity and distinctiveness throughout historical change]*** - A constitution lasts much longer than any specific government does - **2) Relative Constitution** - **Kelsen's view:** The constitution is a collection of legislative articles / provisions - **Schmitt's argument:** Kelsen's view is misleading since Kelsen implies that all of the articles have the same weight - ***[Reality: Some articles are more important than others]*** - Ex.) Article 1 of the Italian constitution:  the priority of labor over property - Property is a product of labor - So you have to recognize the priority of labor - *[Having amendments reduces the constitutional provisions to the level of normal laws]* - Just like how normal laws can be repealed and amended - It's a misconception - It makes us lose sight of the identity-forming nature of the constitution - **3) Positive Constitution** - The constitution is the outcome of a ***[political decision]*** (aka the sovereign deciding, "this is the law") - Relates to Schmitt's Quote \#2 - It's a decision by the ***[holder of the constituent power]*** (which could be an individual OR a body) - Many constitutions have a preamble that represents the ***[decision]*** made by the constituent power - It usually determines the form of the state (ex. federal state, parliamentary democracy, etc.) - **4) Ideal Constitution** - It's a ***[polemical]*** view / political act - It's a "never again" constitution that rejects a whole different approach - Acts as a bulwark against a return to the past - Ex.) Democracy instead of Fascism - **Schmitt's Quote \#3:** - 1\) The validity of the constitution also comes from its faithfulness to the political will of the subjects (***[laws must represent the political will of the people]***) - ***[Criticizes legal positivism (but his view is still political positivist)]*** - Norms are valid NOT because they *should be* valid BUT because they are positive norms even if they don't regard reasonableness, justice, etc. - ***[CONTENT MATTERS]*** since it must factually represent the political will - BUT Schmitt's view is also another form of positivism (political positivism instead of legal positivism) - Since he says that the laws must factually represent the will of the people (but not necessarily morality) - **Schmitt's view on amendments:** - **Amendments reduce constitutions to the level of normal laws** - *[Amending = creating a WHOLE NEW constitution]* - There's no authorization to do it **John Rawls** **The 22 Rawlsian Key Terms** **1️⃣ Original Position (Rawls's State of Nature)** **Definition:** - ***[Basically Rawls's State of Nature]*** - A *hypothetical scenario* where ***[rational agents]*** design the principles of justice for society. - These agents are placed behind the **veil of ignorance**, meaning they have no knowledge of their personal status (like wealth, race, gender, intelligence, or social status) or specific preferences. - They don't know how they'll be personally affected by the principles of justice - In the original position, you don't choose the constitution, BUT you CAN choose the position in which the future constitution will be influenced by **Purpose:** - **Ensures impartiality**: Strips away self-interest, forcing agents to act fairly for everyone. - **Promotes fairness**: Agents must create principles of justice that apply universally, not just to benefit themselves. **Role in Justice as Fairness:** - Serves as the **starting point** for selecting the two principles of justice. - Ensures that principles are fair, just, and **acceptable to all citizens**, no matter their social position. **Example:** - Imagine dividing a cake without knowing which slice you'll get. To avoid getting stuck with a tiny piece, you'll want every piece to be equal in size. This is the same logic behind the original position. **Importance:** - **Foundation of Rawls's theory**: Without it, self-interest could lead to unjust rules. - Guarantees that **no one is unfairly advantaged** or disadvantaged due to luck, status, or ability. **2️⃣ Justice as Fairness** **Definition:** - ***[Rawls's political conception of justice]*** that frames **society as a fair system of cooperation among free and equal citizens**. - ***[The most reasonable principles of justice are those that would be the object of mutual agreement by persons under fair conditions]*** - It combines the **two principles of justice** (Equal Liberty and the Difference Principle) to regulate the basic structure of society. - ***[NOTE: Justice as fairness requires BOTH rational AND reasonable individuals (rational bounded by reasonable)]*** - Only reasonable = have no ends of the their own - Only rational = no sense of justice & no burdens of judgement (failure to recognize the validity of other worldviews) **Core Idea:** - Unlike utilitarianism, which aims for the greatest happiness for the greatest number, justice as fairness **prioritizes fairness and individual rights**. - Ensures everyone has equal rights and that inequalities benefit the least advantaged (affirmative action) **Purpose:** ***[To achieve an Overlapping Consensus]*** **Key Features:** - **1) Fair Terms of Cooperation**: Institutions ensure equal rights and opportunities for all. - **2) Shared Public Justification**: Justice principles must be justified in terms everyone can understand and accept. **Example:** - **Affirmative action policies** might be justified under justice as fairness, as they aim to improve opportunities for the least advantaged. **Importance:** - **Alternative to utilitarianism**: Rawls rejects sacrificing individual rights for \"greater good\" calculations. - Provides a **practical model** for shaping fair social institutions and **legitimizing state power**. **Fundamental Ideas Underlying Justice as Fairness** - **1) Society as a Fair System of Cooperation**: - Central organizing idea that emphasizes fair collaboration among free and equal individuals across generations. - **2) Citizens as Free and Equal Persons**: - Citizens are viewed as moral and rational agents, capable of reasoning and cooperating under fair terms. - **3) Well-Ordered Society**: - A society effectively regulated by a shared **political conception of justice**. **3️⃣ Two Principles of Justice as Fairness** 1️⃣ **Equal Basic Rights (Negative Rights / Liberty)**: - Everyone gets equal basic rights and liberties (like free speech, religion, and voting). 2️⃣ **Difference Principle (Positive Rights / Fair Equality of Opportunity)**: - *[Inequalities are only justified if they **benefit the least advantaged**]*. - *[Opportunities must be equally accessible to all]*. **Order of Priority**: - **Basic Rights (Liberty) \> Difference Principle**: Liberty can't be sacrificed for economic gain. **Example:** - Allowing billionaires to exist is justified only if their wealth benefits the least advantaged (e.g., taxes, charity). **Importance:** - This is **the core product of the original position**. - It guarantees both **freedom and fairness**, with inequalities allowed only if they help the least advantaged. **4️⃣ Veil of Ignorance** **Definition:** - A *mental device* in the original position that deprives individuals of knowledge about their personal characteristics (like race, wealth, or intelligence) or their position in society. **Purpose:** - **Removes bias**: Forces decision-makers to be impartial. - **Encourages fairness**: Without knowledge of their own status, agents create fair principles to protect themselves no matter where they \"land\" in society. **What's Hidden:** - Personal details like gender, class, religion, wealth, intelligence, and abilities. - Personal life goals, beliefs, and moral views. **What's Known:** - General facts about society, like the existence of inequality, human psychology, and resource scarcity. **Example:** - Designing traffic laws behind a veil of ignorance means you won't know if you'll be a driver, pedestrian, or cyclist. You'd likely create rules that prioritize the safety of all three groups. **Importance:** - **Guarantees impartiality**: No one can \"rig the system\" in their favor. - Forces citizens to **act morally and fairly**, even if they don't know their social role. **5️⃣ Reflective Equilibrium** **Definition:** - A method of reasoning where people seek **consistency** between general principles (rights / rules) and particular judgments (opinions) about justice (i.e. what principle to prioritize). - ***[If a conflict arises, either the principle or the judgment must be revised to achieve balance]***. **2 Types of Reflective Equilibrium:** - **1) Narrow Reflective Equilibrium**: Focuses on personal convictions and immediate judgments. - **2) Wide Reflective Equilibrium**: Includes *[philosophical views]* and *[broader moral perspectives]*. **Purpose:** - **To achieve moral coherence**: Ensures that principles and individual moral judgments align. - Explains how people can endorse the two principles of justice. **Example:** - *[You might believe in free speech but also believe hate speech should be restricted.]* - Options: - Revising one of the principles (adding exceptions) - Letting one principle override the other - Changing the judgement (your opinion) to conform with one of the principles **Importance:** - It's **Rawls's method of justification** for his two principles of justice. - Helps create a stable foundation for shared moral reasoning in society. **6️⃣ Circumstances of Justice** **Definition:** - The conditions where justice becomes necessary. - **2 Main Conditions:** - **1) Objective Circumstances**: Resources are moderately scarce (not abundant, but not entirely absent). - **2) Subjective Circumstances**: People have **conflicting interests** and pursue different goals. **Why It Matters:** - If resources were unlimited, there'd be no need for rules of justice. - If survival was at stake (like extreme scarcity), people would prioritize survival over fairness. **Example:** - In a famine, justice might collapse as survival instincts override cooperation. - But in normal circumstances, justice can regulate the fair distribution of resources. **Importance:** - **Explains why justice exists**: It arises to manage limited resources and competing goals. - Shapes Rawls's vision of society as a system of fair cooperation. **7️⃣ Fact of Pluralism** **Definition:** - The **inevitable diversity of worldviews** in democratic societies (religious, philosophical, and moral beliefs). - Has to be differentiated between reasonable and unreasonable pluralism. **Why it Happens:** - Free societies encourage critical thinking, leading to a range of views. **Rawls's View:** - **Reasonable pluralism** isn't a flaw, it's a permanent feature of free societies. **Example:** - Different religions (Christianity, Islam, Atheism) coexist in liberal democracies, but they must support shared rules like free speech. **Importance:** - **Explains the need for a political conception** of justice, not one based on religious or moral consensus. - Forms the basis for Rawls's **public reason**. **8️⃣ Reasonable Pluralism** **Definition:** - The peaceful coexistence of **different reasonable worldviews** (religions, moral beliefs) within a democratic society. **Reasonable vs. Unreasonable Doctrines**: - **Reasonable**: Respects others\' rights and recognizes **the burdens of judgment**. - **Unreasonable**: Demands conformity (like religious fundamentalism). **Importance:** - **Legitimizes the concept of public reason**, since people with different worldviews can agree on shared public values. **9️⃣ Political Conception of Justice** **Definition:** - A freestanding conception of justice, not tied to any religious or philosophical doctrine. - The political conception of justice is designed for ***[reasonable actors]*** - BUT you CAN'T only have the reasonable because otherwise, you'd have no grasp on any idea of purpose **Features**: - Draws on **public reason**. - **Applies to the basic structure of society** (not personal life). **Example:** - Religious groups may support free speech for different reasons, but they can all support it as a principle of public justice. **Importance:** - Ensures **political stability** in pluralistic societies. - Allows people with different beliefs to agree on shared rules. **🔟 Basic Structure of Society** **Definition:** - The **social, political, and economic institutions** that shape people\'s rights, duties, and opportunities (like courts, laws, schools, and markets). **Purpose:** - The basic structure is the **primary subject of justice**. - It's where the two principles of justice as fairness are applied. **Example:** - Public education, voting rights, and tax systems are part of the basic structure. **Importance:** - Since the basic structure shapes people\'s life chances, it must be **just and fair**. - It's the focus of Rawls's theory of justice. **1️⃣1️⃣ Comprehensive Doctrines** **Definition:** - **Moral, philosophical, or religious worldviews** that provide a complete framework for how people view the world, their purpose in life, and the nature of morality. - Can be **Fully Comprehensive** (covering all aspects of life) or **Partially Comprehensive** (focused on certain areas, like ethics or politics). **Examples of Comprehensive Doctrines:** - **Religious doctrines** that explain life\'s purpose and moral obligations. - **Secular doctrines** (like utilitarianism or Kantian ethics) that focus on morality, fairness, and rationality. **Purpose:** - Shows that, in a pluralistic society, people have **irreconcilable but reasonable worldviews**. - Rawls argues that ***[no single comprehensive doctrine should control political principles in a democracy]***. **Role in Justice as Fairness:** - Comprehensive doctrines influence personal beliefs, but **political conceptions of justice must be freestanding** (not tied to one worldview). - **Public reason** ensures that political decisions are justified without relying on any one comprehensive doctrine. **Importance:** - Recognizing comprehensive doctrines highlights the **need for public reason**. - Explains why society can't be built on any one religion or ideology. **1️⃣2️⃣ Society as a Fair System of Cooperation (and Union of Social Unions)** **Definition:** - Society is a *[system where **free and equal citizens** work together for mutual benefit]*, guided by **fair rules of cooperation**. - The \"Union of Social Unions\" means that within society, smaller groups (like families, associations, and clubs) operate as **smaller cooperative units** that reflect the larger system. **Core Idea:** - *[People aren\'t isolated individuals but are members of many overlapping \"unions\" (like families, workplaces, and communities) that come together under the **basic structure** of society]*. **Purpose:** - Emphasizes that social cooperation should be **voluntary and mutually beneficial**. - Shows how **justice as fairness** extends to all parts of society, not just government institutions. **Importance:** - **Legitimizes social institutions** like schools, families, and workplaces as essential components of a just society. - Reinforces the idea that justice should be **consistent at all levels** of society. **1️⃣3️⃣ Political Conception of the Person** **Definition:** - *[A view of citizens as **free, equal, and rational agents** with **2 moral powers**]*: - **1) Sense of Justice**: Ability to understand and act according to shared principles of justice. - 1.1) The capacity for *[**collective political action** (deciding prioritise among collective goals that can't all be achieved due to scarcity of resources)]* - 1.2) The capacity for self-regulating its own political action through constitutive rule (like the rules in chess) - **2) Conception of the Good**: Ability to form and pursue a personal life plan. **Core Idea:** - People are seen as **moral agents** with rights and responsibilities, not just self-interested beings. - Unlike a \"comprehensive\" view of the person (which might include spiritual or religious traits), Rawls focuses on these **two moral powers**. **Purpose:** - Justifies why **all citizens deserve equal rights** in a just society. - Provides the foundation for **public reason** and **justice as fairness**. **Importance:** - Rawls's vision of the person underpins the **original position** and explains why all people deserve equal treatment. - Without this concept, it would be harder to argue for **universal rights and equality**. **1️⃣4️⃣ Well-Ordered Society** **Definition:** - A society where citizens: - **1) Share the same conception of justice (principles of justice)**. - They accept AND know that everyone else accepts these principles of justice - Allows them to comply - **2) Have just institutions**. - The **basic structure** of society (its political and social institutions) must be publicly known or reasonably believed to comply with those principles - **3) Develop a sense of justice** that allows them to act on these principles. **Requirements (Assumptions):** - [**1) *Stability for the right reasons*** *(not fear of punishment)*]. - 2\) Institutions reflect principles of **justice as fairness**. - 3\) Citizens trust each other to follow the rules. - Very important because \[reasonable\] individuals need this **Example:** - Imagine a society where everyone accepts and follows the same fair rules of cooperation, even when no one is watching. **Importance:** - The well-ordered society is the **end goal of justice as fairness**. - It's a model for how social cooperation works under fair rules. **1️⃣5️⃣ Rational vs. Reasonable** **Definition:** - **Rational**: People who pursue their personal goals or self-interest (unwilling to make sacrifices) AND can't accept other comprehensive doctrines - BUT self-interest also includes ties to family, communities, etc. - They delegitimize the opponent's opinions - **Reasonable**: People who are willing to cooperate fairly (accept **fair terms of cooperation** and follow them ***[as long as others do as well]***) and accept the **burdens of judgment**. They reasonably ACCEPT other comprehensive doctrines - NOT totally altruistic (since they want others to follow the rules as well) **Key Differences:** - Rational agents focus on their personal advantage. - Reasonable agents seek **fair terms of cooperation**, even if it means self-sacrifice. **Example:** - A rational person seeks wealth for themselves. - A reasonable person agrees to taxation, even if it limits their wealth, to support public goods like education and healthcare. **Importance:** - The **original position** depends on agents being **rational** BUT also *[constrained by the reasonable]*. - Both rationality and reasonableness are necessary for **cooperation** and **justice as fairness**. **1️⃣6️⃣ Burdens of Judgment** **Definition:** - **The reasons why reasonable people can disagree** on moral and political issues. - *[They explain why in the absence of oppression, reasonable disagreement and reasonable pluralism (diversity of opinions) are to be expected]* **Sources of Burdens:** - **Conflicting evidence** (different interpretations of facts). - **Weight of moral considerations** (values like liberty vs. security). - **Complexity of situations** (many moving parts to consider). - **Different life experiences**. **Importance:** - Explains why **reasonable pluralism** exists in free societies. - Shows why people with different worldviews can still be reasonable and cooperative. **1️⃣7️⃣ Liberal Principle of Legitimacy** **Definition:** - **Political power is legitimate ONLY IF it's exercised in ways that all citizens can reasonably accept**. - Unlike John Austin's Command Theory of Law, where laws are just a sovereign's commands backed with threats - Citizens must be able to justify the exercise of power using **public reason**. - *[**Constitutional ESSENTIALS** (not necessarily details) **need to be reasonably acceptable by all citizens (based on shared principles & ideals)**]* **Purpose:** - Prevents the **imposition of one comprehensive doctrine**. - Ensures that **coercive laws** are justified by shared principles, not ideology. **Importance:** - Guarantees that laws respect **pluralism**. - Promotes the idea of **justified coercion**, where even those who lose in a vote can accept the outcome. **What makes a law a binding (legitimate) law?** - It needs to follow a constitution whose political conception of justice includes an overlapping consensus between all the reasonable comprehensive doctrines. **1️⃣8️⃣ Overlapping Consensus (Comes after Constitutional Consensus)** **Definition:** - A stable consensus  (supported by moral reasons) on political principles by citizens who have different reasonable comprehensive doctrines (worldviews), allowing stability in a pluralistic society - People with different **comprehensive doctrines** can all support the same political rules for different reasons. - \[Must be STABLE FOR THE RIGHT REASONS\] - Much more long-lasting than a *modus vivendi* **Example:** - Religious groups, atheists, and utilitarians may all support **freedom of speech**, but for different reasons (human dignity, personal autonomy, etc.). **Importance:** - Shows how a society with **pluralism** can be stable for the right reasons. - It's more durable than a **modus vivendi**, which is just a temporary truce. **1️⃣9️⃣ Constitutional Consensus (1st Step to Overlapping Consensus)** **Definition:** - A more basic form of agreement on **constitutional rules** and **legal procedures**, BUT not necessarily on philosophical / moral principles. **Example:** - Citizens might agree on **voting rights** and **free speech** without agreeing on the moral basis for these rights. **Importance:** - It's the **first step toward overlapping consensus**. - Provides a foundation for **legal stability** in pluralistic societies. **2️⃣0️⃣ Modus Vivendi** **Definition:** - A **temporary peace agreement** based on strategic compromise, NOT shared moral values. - Unstable & lasts as long as it serves everyone's interests **Example:** - A ceasefire between warring factions (it's fragile). **Importance:** - Rawls distinguishes it from an **overlapping consensus**, which is more stable because it's supported by moral reasons, not just convenience. **2️⃣1️⃣ Public Reason** **Definition:** - A **shared mode of reasoning** used in public debates about constitutional essentials and basic justice. - Citizens must justify laws with **FREESTANDING public values** (like fairness and equality), not private religious or ideological beliefs. **Example:** - A judge justifies a ruling on the basis of **equality under the law**, not personal religious beliefs. **Importance:** - Prevents **sectarian rule** (like theocracy). - Ensures that laws are justified in ways that **all citizens can accept**. **Nonpublic Reason (OPPOSITE of public reason)** - Nonpublic reasoning happens **outside public political forums**. - It occurs within **civil society**---churches, universities, professional groups, or private associations. - **Characteristics**: - Rooted in particular doctrines, ideologies, or values unique to the group. - Reasoning is only shared by the group's members, NOT the public. - Ex.) A church may require theological reasoning to settle moral issues, but that reasoning is limited to the church community, not the entire public sphere. **Public Reason vs. Nonpublic Reason** **Aspect** **Public Reason** **Nonpublic Reason** ------------------- ----------------------------------------------- ----------------------------------------------------------- **Scope** Fundamental justice, basic rights Specific group issues (religious, academic) **Participants** All citizens, officials, judges Members of churches, schools, or unions **Basis** Shared political values (justice, fairness) Comprehensive doctrines, moral truths **Justification** Appeals to public reason and political values Appeals to theological, academic, or group-specific norms **Examples**: - Public Reason: A judge bases a ruling on constitutional rights to equal protection. - Nonpublic Reason: A religious leader issues a moral judgment based on divine revelation. **2️⃣2️⃣ Constituent Power** **Definition:** - The **power of the people to create or amend (revise) a constitution**. - This power is often used during **revolutions or founding moments** of new states. **Example:** - The U.S. Constitution was established through the **constituent power** of the people. **Importance:** - Links to **constitutional legitimacy**. - **Empowers citizens** as the ultimate source of political authority. **Important Political Conceptions of the Person** **Rousseau's View:** - The individual has an intrinsic "propensity" (inclination) for association **Hobbes's View:** - Opposite view (Hobbesian): State of nature = Individuals have NO natural propensity to social life **Rawls's View:** *[NEUTRAL conception of the person]* - 1\) Human beings are endowed with the moral power to conceive an idea of "the good" (and to change it whenever deemed necessary) - Acting = linking together ends and means - Living a good life is an end in and of itself - 2\) Each individual recognizes each other's autonomy - Opposite: Slavery (slaves need their master's permission to authorize claims) - 3\) Individuals are free insofar as they recognize the limits to which they can advance their claims (views of "the good") - So one person's freedom can't limit other people's freedom (?) - Ex.) Someone's view of "the good" can't require killing, since that would violate justice **Rousseau's and Lockes View's on Legitimacy** **(Rousseau's) view: MAJORITY rule (non-constitutional democracy)** - Legitimacy = comes from acceptance by the majority OR follows what most people want - Ex.) In the US, 45% of the public believes that the US should declare itself as a Christian state - 1/4 of that 45% believes that in case of conflict, the Bible should be referred to instead of laws **Locke's view: Consent of the governed** - Legitimacy comes from the *[**consent** of the governed]* - **Rawl's counter-argument:** RATIONAL IGNORANCE (consent is ***[emotional]***, NOT rational) - People don't want to educate themselves before voting since they know they have very little influence on the voting results - So they vote emotionally, not rationally - Opinions are now formed through anonymous processes of communication (ex. social media) - Now, political leaders need to have rapid reactions on the internet (ex. social media posts & tweets) - There's less time to consult others & form reasonable opinions - VERTICALIZES the process - ***[Rawls says we'll NEVER have the total consent of the governed]*** - *[There'll always be dissenters who think the law is unjust]* **Prof's View: Legitimation by Constitution:** - Legitimacy comes from ***[CONSTITUTIONALITY]*** - The ***[Constitutional Court (CC)]*** acts as an impartial ***[referee]*** (like one in a sports game with the ultimate authority to judge if acts were in accordance with the constitution or not)   **Political Liberalism (the Concept)** **What is Political Liberalism?** - It's the insistence that, in order to maintain its legitimacy, a liberal state MUST commit itself to public reason - Citizens must engage in debates with each other ONLY through ***[FREESTANDING public values]*** (their shared mode of reasoning) - Ex.) Fairness and equality (not private moral or religious views) ***[3 Conditions For Political Liberalism]*** (for society to be a fair system of cooperation between equal and reasonable citizens): - **1) Society is regulated by a political conception of justice** (as opposed to a comprehensive, non-political conception of justice) - Ex.) Some people might say everyone needs to have the right view of justice and we need to disregard those who don't - **2) The political conception of justice needs to have an *[overlapping consensus]* from all reasonable conceptions of justice (enables people from different views of political justice to accept it)** - Ex.) Italian Constitution: Formed by Catholics, Marxists, and liberals who found common ground and had a consensus - BUT there can be some outliers (unreasonable comprehensive worldviews; extremists) - They demand conformity & don't recognize the burdens of judgement - **3) Public Reason: Public discussions need to be conducted by reasoning from the point of view of what is *common ground* (freestanding public values)** ***Political Liberalism* (John Rawls)** **Introduction & Lecture 1** **🌐 Key Concepts and Themes** - **Political vs. Comprehensive Doctrines**: - **Political Conception**: A shared, ***[FREESTANDING]*** moral framework focused on the **basic structure of society**. - DOESN'T derive itself from any comprehensive doctrine - Instead, draws on shared public values (liberty, equality, fairness) - Can be supported by groups with different comprehensive doctrines (for different reasons) - Ex.) Catholics, Marxists, and Kantianists might all support the freedom of speech (but for different reasons) - *[They focus exclusively on the **basic structure of society** (unlike general moral doctrines that apply universally)]* - **Comprehensive Doctrines**: Broader religious, moral, or philosophical worldviews that are NOT shared by all citizens. - Includes both religious and secular doctrines (like utilitarianism, Kantianism, etc.). - **3 Elements of Social Cooperation (based on Justice as Fairness):** - **1) Guided by Rules**: - Cooperation ≠ coercion (it must be voluntary) - Operates through **publicly recognized rules and procedures** accepted by participants - **2) Fair Terms of Cooperation**: - Terms are based on **reciprocity** (acceptable for reasonable individuals): - Each participant must reasonably accept them, provided everyone else does the same. - These terms regulate **basic rights, duties**, and the fair distribution of benefits over generations. - *[**Principles of justice** serve as benchmarks for fairness]* - **3) Participants\' Rational Advantage**: - Cooperation considers each participant\'s / group's **rational goals or good** - **Justice as fairness** balances individual rational goals with collective fairness - **Political Conception of the Person:** - *[A **person** = a **free, equal, and rational agent** who is able to participate in social cooperation (exercising rights, respecting obligations) & has **2 moral powers**]*: - **1) Sense of Justice**: Ability to understand and act according to shared principles of justice - **2) Conception of the Good**: Ability to form and pursue a personal life plan. - Not permanently tied to any particular conception - A person's public identity (rights, duties, etc.) is INDEPENDENT of their conception of the good - People are seen as **moral agents** with rights and responsibilities, not just self-interested beings. - Unlike a \"comprehensive\" view of the person (which might include spiritual or religious traits) - Rawls's conception of the person is **political, NOT metaphysical** (doesn't assume that people are purely rational) - **How it relates to Justice as Fairness:** - Citizens are **free** because they possess moral powers. - Citizens are **equal** because they can fully participate in cooperation. - **Conceptions of the Good**: - Includes: - **Final ends** (goals valued for their own sake). - Attachments to people, groups, and ideals (e.g., loyalty, affection). - Broader views of **life's meaning** (religious, moral, or philosophical). - These conceptions are dynamic and evolve over a person's lifetime. - **Public Reason**: - Public reason governs **political deliberation** on constitutional essentials and issues of basic justice. - It requires citizens to offer FREESTANDING public reasons (ex. equality, fairness) for political positions that others can reasonably accept. - **Overlapping Consensus**: - Stability is achieved through an **overlapping consensus** where citizens support the same **political conception of justice**, though for different reasons tied to their own doctrines. - Unlike a **modus vivendi** (pragmatic truce), an overlapping consensus is stable for the right reasons (moral agreement, not self-interest). - **The Original Position:** - Used to help determine the fair terms of cooperation for a society under justice as fairness - ***[Basically Rawls's State of Nature]*** - It's a *hypothetical scenario* where ***[rational agents]*** design the principles of justice for society. - These agents are placed behind the **veil of ignorance**, meaning they have no knowledge of their personal status (like wealth, race, gender, intelligence, or social status) or specific preferences. - They don't know how they'll be personally affected by the principles of justice - ***[Ensures impartiality & fairness]*** - **Veil of Ignorance:** - Method used in the Original Position where the rational agents who design principles of justice ***[lack knowledge]*** about their own social status, preferences, and qualities - Ex.) Race, gender, wealth, religion, etc. - **Reflective Equilibrium:** - Our role as theorists / observers is to evaluate justice as fairness through the Reflective Equilibrium - It's a method of reasoning where people seek **consistency** between general principles (rights / rules) and particular judgments (opinions) about justice (i.e. what principle to prioritize). - ***[If a conflict arises, either the principle or the judgment must be revised to achieve balance]***. **⚖️ Liberal Principles of Justice** - **Political Conception of Justice:** - A freestanding conception of justice, not tied to any religious or philosophical doctrine. - Relies on **public reason**. - **Applies to the basic structure of society** (not personal life). - - - - **Liberal Principle of Legitimacy**: - Coercive political power is legitimate only if it is exercised according to principles that all citizens can reasonably accept. - Political decisions must be justifiable through **public reason**, even to those who reject the underlying comprehensive doctrines. - **Reasonable Pluralism**: - Recognizes that in a free society, citizens will naturally adopt diverse comprehensive doctrines. - The challenge is how to achieve political stability without forcing people to abandon their worldviews. - **Overlapping Consensus:** - A stable agreement (supported by moral reasons) on political principles by citizens who have different reasonable comprehensive doctrines (worldviews), allowing stability in a pluralistic society - People with different **reasonable comprehensive doctrines** can all support the same political rules for different reasons. - \[Must be STABLE FOR THE RIGHT REASONS\] - Much more long-lasting than a *modus vivendi* - NOT a **political compromise**: - NOT a way of tailoring justice to fit existing comprehensive doctrines or to find a \"balance\" between them. - **The Well-Ordered Society**: - A well-ordered society has three features: - **1) Shared conception of justice**: All citizens know & accept & comply with principles of justice AND know that others will do the same. - **2) Just institutions**: Institutions comply with the agreed-upon principles of justice. - **3) Effective sense of justice**: Citizens develop a moral capacity to understand and act according to justice. - Unlike associations, it DOESN'T have final ends (ex. religious salvation) **What is a "Society"?** - **Society is NOT:** - 1\) A community - Because communities are *[unified by a **shared comprehensive doctrine**]* - Ex.) A single religion / moral view - ***[Democratic societies must respect reasonable pluralism]*** - 2\) An association - Because associations have membership criteria & specific purposes - You can enter or leave it whenever you want (NOT born into it) - Associations can pursue specific nonpolitical aims because (since their members already enjoy the guarantees of equality and freedom provided by society's basic structure) - **A Well-Ordered Society IS:** - A **fair system of cooperation** *[between free and equal citizens]* **over time**, spanning generations - A CLOSED society (members enter through birth and leave through death) - Shapes its members' identities **Lecture 2: The Powers of Citizens and their Representation** **Rawls's 2 Questions:** - **1)** What is the most appropriate **conception of justice** to establish **fair terms of social cooperation** among citizens viewed as **free and equal** AND fully cooperating over **complete lives**, across generations? - **2)** How can we establish **grounds for toleration**, given the **reasonable pluralism** of religious, philosophical, and moral doctrines, which inevitably arises in free societies? - *[**Combined Question:** How can a **just and stable society** of free and equal citizens exist over time despite profound, reasonable disagreements on ultimate truths (given divisions in reasonable religious and moral doctrines)?]* **Answer:** - A *[society **governed** by a **political conception of justice**]*, *[**supported by overlapping consensus** among reasonable comprehensive doctrines]*, *[serves as the basis for public reason]* in debates over constitutional essentials and matters of basic justice. - *[Answer to Rawl's question of how there can be a stable and just society OVER TIME:]* - 1\) There needs to be a constitution that is a continuous project across generations - 2\) All generations of "the people" need to have equal freedom & duties - There needs to be the same core of rights and obligations - Of course, there can still be an extra layer of rights for the living people - BUT the current generation ***[can't]*** diminish the freedom of the future generation 1️⃣ **The Rational and the Reasonable** **Core Distinction** - **Rational**: People who pursue their personal goals or self-interest (unwilling to make sacrifices). - BUT this self-interest can include attachments to family, religion, or community (so it's not entirely selfishness) - Doesn't guarantee fairness or cooperation - Used as lawmakers for the Original Position - **Reasonable**: People who are willing to cooperate fairly (accept **fair terms of cooperation** and follow them ***[as long as others do as well]***) and accept the **burdens of judgment**. - They require **reciprocity** - NOT totally altruistic (since they want others to follow the rules as well) - BUT they're willing to act on fair principles even when it's against their self-interest. - Ex.) Paying taxes to improve public education even though it limits their wealth (and even if they don't use public education) **Why They Complement Each Other** - Rawls argues that **both the reasonable and the rational** are necessary for cooperation. - The **original position** ensures fair terms by balancing rational interests with reasonable constraints. - **Cooperation requires both**: - Without reasonableness, rational agents become exploitative. - Without rationality, reasonable agents lack purpose for cooperation. **2️⃣ The Burdens of Judgment** **Definition and Causes** - The **burdens of judgment** explain why even reasonable people disagree on political and moral issues. - Sources of disagreement include: - **Conflicting Evidence**: Scientific or empirical evidence is often complex. - **Weight of Considerations**: People prioritize evidence differently. - **Vagueness**: Key concepts (e.g., equality) are open to interpretation. - **Divergent Life Experiences**: People's personal experiences shape how they perceive evidence. - **Competing Values**: Different values must be balanced, but there is limited \"social space\" for all values. - **Complexity of Normative Assessments**: Weighing different moral, legal, and political considerations is difficult. **Consequences for Political Liberalism** - The burdens of judgment explain why **reasonable pluralism** is inevitable in free societies. - **Tolerance** becomes a necessary political virtue, since no single doctrine can claim absolute moral authority. - Political legitimacy must be based on **public reason**, not coercion or enforcement of any particular doctrine. **3️⃣ Reasonable Comprehensive Doctrines** **Defining Features** - **Coherent and Consistent**: Comprehensive doctrines organize moral and philosophical values into a unified system. - **Evolving Over Time**: Comprehensive doctrines (like religious or philosophical beliefs) develop gradually. - **Rooted in Reason**: Doctrines reflect moral reasoning and offer rational support for social cooperation. **Pluralism and Toleration** - **Reasonable Pluralism** arises from the burdens of judgment, leading to a variety of reasonable doctrines in society. - Toleration is not merely a concession but a recognition of **human fallibility** and the inevitability of disagreement. - **Public reason** prevents one doctrine from dominating political life, ensuring political stability. **Lecture 4: The Idea of an Overlapping Consensus** **1️⃣ How is Political Liberalism Possible?** **The Problem of Stability in a Pluralistic Society** - **Core Challenge**: - How can a just, stable society endure despite deep moral, religious, and philosophical divisions among its citizens? - How can citizens with radically different comprehensive doctrines (e.g., Christianity, utilitarianism, and secular humanism) all support the same set of political principles? **Overlapping Consensus vs. Modus Vivendi** - **Modus Vivendi**: - A **temporary compromise** based on self-interest and balance of power. - Example: Imagine two rival political factions agree to a peace treaty. The treaty only holds as long as neither side gains an advantage. If one side becomes more powerful, they'll break the treaty. - **Unstable**: If a group gains more power, they'll impose their own agenda. - **Overlapping Consensus**: - A **moral agreement** where citizens from different *[reasonable comprehensive doctrines]* **endorse the same political conception of justice** for different reasons (they see it as moral from their own perspectives). - Citizens support the principles of justice as ***[morally correct]***, not merely as a strategy to avoid conflict. - **Stability:** It persists even when power shifts, because the support for political principles is deeply rooted in moral convictions, not just convenience. - Stability arises when this consensus aligns with the **essential interests** of society\'s citizens - **Example**: Catholics, utilitarians, and atheists may all support the right to religious freedom, but for different reasons: - **Catholics** might value it as part of human dignity and the Church\'s stance on conscience. - **Utilitarians** might see it as maximizing well-being and reducing social conflict. - **Atheists** might see it as essential for protecting personal autonomy. - Each group reaches the same conclusion but for distinct reasons. **Freestanding Political Conception** - A political conception of justice (like **justice as fairness**) does NOT depend on any one comprehensive doctrine. - It draws on **public reason** and appeals to shared values (e.g., equality, liberty, and reciprocity) that all reasonable citizens can recognize. - By being **freestanding**, the political conception of justice avoids divisive philosophical or religious debates. **What Makes It Possible?** - **Reasonable Pluralism**: Free societies naturally generate diverse views on morality and philosophy. - **The Liberal Principle of Legitimacy**: Coercive political power is legitimate only if it is based on principles that all citizens could reasonably accept, even if they have different worldviews. **Historical Comparison** - Thinkers like **Plato**, **Aristotle**, **Augustine**, and **Aquinas** emphasized a **single vision of the rational good** as the basis of just institutions, often grounded in metaphysics, theology, or moral philosophy. - Wouldn't have allowed for the pluralism of reasonable comprehensive doctrines  - By contrast, Rawls rejects this dominant tradition, arguing that **practical reason** under free institutions leads to multiple reasonable doctrines that are irreducible to one comprehensive view **2️⃣ Stability For the Right Reasons** **Two Kinds of Stability** - **1) Practical Stability** (in ***modus vivendi***): - People follow the rules because it's in their self-interest. - If a group\'s power grows, it will abandon the agreement. - Ex.) In international relations, treaties may be abandoned if one country gains significant power, as seen in shifting alliances during wartime. - **2) Moral Stability (Liberal Stability** - in a Well-Ordered Society with an overlapping consensus**)**: - Citizens follow rules out of **moral conviction**, not fear of punishment. - *[**Liberal stability is more enduring** because citizens\' sense of justice is aligned with the principles of justice]*. - Ex.) A citizen respects religious freedom not because they fear punishment but because they believe in the principle of human dignity. **How Is Stability Achieved?** - Through an **overlapping consensus**, *[citizens endorse justice as fairness **from within their own comprehensive doctrines**]*. - **Moral Development**: Just institutions shape citizens\' moral character. Over time, people come to see principles of fairness, liberty, and equality as morally justified. - **Reciprocity:** If people see that others are upholding the principles, they're more likely to continue upholding them as well. **Why Is Stability So Hard?** - It requires citizens to support principles of justice for **moral reasons**, not just for strategic reasons. - Rawls addresses how **moral development** works: Just institutions foster the virtues of fairness, reciprocity, and reasonableness. **3️⃣ Three Features of an Overlapping Consensus** **1. Depth** - *[The consensus must **extend to fundamental principles**]* like the equality of citizens and the idea of society as a fair system of cooperation. - Citizens with different religious or moral beliefs can still endorse political concepts like \"justice as fairness\" as deeply meaningful. - Ex.) Both a Kantian and a Christian might believe that \"all citizens are free and equal,\" but for different reasons. **2. Breadth** - *[The consensus must **cover the full range of essential constitutional principles**, not just narrow procedural rules]*. - Includes commitments to fundamental rights (ex. freedom of speech, freedom of conscience) and principles of distributive justice. - Ex.) Justice as fairness addresses not only legal rights (e.g., voting) but also the socio-economic conditions (like access to education) that allow people to fully participate in society. **3. Specificity** - *[The consensus **must be specific enough to resolve actual political disputes**]*. - It focuses on practical, real-world issues (e.g., healthcare access, voting rights) but leaves room for interpretation across different doctrines. - Ex.) Citizens might agree on the right to free speech but disagree on its limits (e.g., hate speech laws). - The consensus must be flexible enough to resolve these issues. **4️⃣ The Role of Public Reason** **What Is Public Reason?** - Public reason is the language of **political justification**. - *[It demands that citizens justify political decisions using **political values** (like liberty, equality, and fairness) that everyone can understand]*. - These political values are ***[freestanding]*** - Citizens must **set aside their comprehensive doctrines** (religious / moral views) when engaging in debates about constitutional essentials and basic justice. **Why Public Reason Matters** - Public reason ensures that all citizens can see laws and policies as legitimate. - Without public reason, one group's religious or philosophical beliefs might dominate politics. - *[Ex.) If a law banning abortion is justified using religious beliefs, non-religious citizens won't see it as legitimate.]* - *[**BUT** if the law is justified in terms of \"respect for life,\" it appeals to a broader set of shared political values]*. **5️⃣ Avoiding Skepticism & Indifference** **Criticism:** - Critics say that **overlapping consensus** implies indifference to truth. - If everyone \"agrees to disagree\" about morality, doesn\'t that make truth irrelevant? **Rawls's Response:** - Political liberalism doesn't **deny the truth** of religious, moral, or philosophical beliefs. It simply doesn\'t base justice on any one of them. - ***[Citizens can believe that their comprehensive doctrines are true while still supporting the political conception for shared political reasons]***. - **Analogy to Religious Toleration**: - Tolerating religious diversity doesn't mean you think all religions are true or false. It means you respect others\' right to hold those beliefs. **6️⃣ Transition From Constitutional to Overlapping Consensus** **Stage 1: Constitutional Consensus** - Citizens agree on constitutional procedures (like free elections) but may have different views on **why** these procedures are just. - Ex.) People may initially support democracy because it protects their self-interest (like in a *modus vivendi*). **Stage 2: Overlapping Consensus** - Citizens gradually come to see the principles of justice as morally right and binding, not just useful. - Ex.) After decades of living in a democracy, people might develop moral commitments to free speech and voting rights. **7️⃣ How Comprehensive Doctrines Support Liberalism** **Examples of Doctrines That Support Liberalism** - **Kantianism**: Supports justice as fairness because it aligns with Kant\'s idea of autonomy and respect for persons. - **Utilitarianism**: Supports it as a pragmatic approximation of the principle of utility. - **Religious Doctrines**: Many religious doctrines (like Christianity) value **human dignity** and **liberty of conscience**, which align with liberal principles. **No Need for Compromise** - Citizens don\'t have to give up their comprehensive doctrines. Instead, they recognize how their doctrines naturally **support liberal principles**. **🔑 Key Takeaways** - The **overlapping consensus** creates moral unity across religious, philosophical, and moral divides. - It evolves from a ***modus vivendi*** (temporary compromise) (and then from a constitutional consensus) to a deep, stable agreement on principles of justice. - It achieves **stability for the right reasons**, as citizens support liberal principles out of moral conviction, not self-interest. - The role of **public reason** is central---it ensures political debate is conducted using shared values rather than private doctrines. **Lecture 6: The Idea of Public Reason** **1️⃣ Core Concept: Public Reason Defined** **What is Public Reason?** - **Public reason** is the way democratic citizens reason and justify political decisions concerning constitutional essentials and matters of basic justice. - It reflects the collective reasoning of citizens as **free and equal participants** in a democracy. - Public reason is **public in three ways**: - **1) Subject**: Focused on public issues like basic justice and constitutional essentials (e.g., free speech, voting rights). - **2) Agents**: Used by citizens, legislators, officials, and judges. - **3) Content**: Based on shared public values (like fairness and equality) and publicly available knowledge (like court precedents, common sense, and scientific reasoning). **Purposes of Public Reason:** - **1) Ensures legitimacy**: Political power is legitimate only when justified by reasons all reasonable citizens can endorse. - **2) Preserves democracy**: By emphasizing fairness and equality, it ensures decisions aren\'t based on self-interest or sectarian doctrines. - Prevents one comprehensive doctrine from oppressing the others - Ex.) If lawmakers propose new voting laws, their justifications should be framed using public values (like fairness and political equality) rather than personal religious or ideological beliefs. **2️⃣ Scope of Public Reason** **Where Does Public Reason Apply?** - **1) Constitutional Essentials**: - Fundamental rights like voting, freedom of religion, and free speech. - Ex.) Debates on voting rights must appeal to shared principles like fairness, not partisan or religious goals. - **2) Basic Justice**: - Core issues like fair opportunities, distribution of wealth, and basic liberties. - Ex.) Discussions about economic inequality must appeal to shared political values like fairness, not personal or religious beliefs. **Where DOESN'T Public Reason Apply?** - 1\) Personal reasoning, private discussions, or civil society (like churches, universities, and social clubs). - Ex.) A priest's sermon on morality can reflect comprehensive religious doctrine, but that reasoning shouldn\'t be used to justify laws on marriage equality. **Who Must Follow Public Reason?** - **Judges**: Must offer constitutional justifications for their rulings, not personal or religious arguments. - **Legislators**: Should justify public policies using shared political values, not personal ideologies. - **Citizens**: When voting on constitutional matters, citizens should act as responsible political agents, basing their decisions on public values, not just personal interest. **3️⃣ The Ideal of Democratic Citizenship** **What Does It Mean to Be a Democratic Citizen?** - **Duty of Civility**: Citizens must be prepared to justify their political views with public reasons that others can reasonably accept. - **Why This Matters**: Without it, democracy collapses into a battle of self-interest, where people vote purely based on private beliefs or power. - **Application**: - When citizens vote, they should be guided by public reason, not their personal religious or philosophical beliefs. - Ex.): A religious citizen may oppose abortion on theological grounds but, under public reason, must frame arguments for abortion laws in terms of shared political values (like liberty, fairness, or equality). **4️⃣ Public Reason vs. Nonpublic Reason** **What is Nonpublic Reason?** - Nonpublic reasoning happens **outside public political forums**. - It occurs within **civil society**---churches, universities, professional groups, or private associations. - **Characteristics**: - Rooted in particular doctrines, ideologies, or values unique to the group. - Reasoning is only shared by the group's members, not the general public. - Ex.) A church may require theological reasoning to settle moral issues, but that reasoning is limited to the church community, not the entire public sphere. **Public Reason vs. Nonpublic Reason** **Aspect** **Public Reason** **Nonpublic Reason** ------------------- ----------------------------------------------- ----------------------------------------------------------- **Scope** Fundamental justice, basic rights Specific group issues (religious, academic) **Participants** All citizens, officials, judges Members of churches, schools, or unions **Basis** Shared political values (justice, fairness) Comprehensive doctrines, moral truths **Justification** Appeals to public reason and political values Appeals to theological, academic, or group-specific norms **Examples**: - Public Reason: A judge bases a ruling on constitutional rights to equal protection. - Nonpublic Reason: A religious leader issues a moral judgment based on divine revelation. **5️⃣ The Content of Public Reason** **What is the Content of Public Reason?** - Public reason draws from the shared **principles of justice** that everyone in a democracy can endorse. - **Substantive Principles**: - Equal rights (like free speech, equal suffrage). - Fair opportunities (access to education, fair pay). - Basic liberties (freedom of religion, freedom of movement). - **Guidelines of Inquiry**: - The reasoning process must be open and transparent. - Citizens should appeal to shared facts, reason, and public evidence. **6️⃣ Constitutional Essentials and Their Role** **What Are Constitutional Essentials?** - **Constitutional Essentials** = **basic framework of the political system** and fundamental rights. - Includes: - **Government Structure**: Rules governing the legislative, executive, and judicial powers. - **Basic Rights and Liberties**: Voting, freedom of speech, freedom of conscience, and equal treatment. - **Why They Matter**: - A democracy\'s legitimacy rests on agreement over these essential rules. - Without shared commitment to essentials (like free speech), democracy cannot function. - Ex.) Debates on gerrymandering involve constitutional essentials because they affect voting rights and the fairness of elections. **7️⃣ The Supreme Court as Exemplar of Public Reason** **Why is the Supreme Court a Model of Public Reason?** - The Supreme Court sets the standard for how **public reason** should be applied in society. - **Judges\' Role**: - They justify their rulings using constitutional values (like equality or due process) and legal precedents. - They cannot justify rulings based on personal, religious, or ideological reasons. **Example** - **Case Study: Brown v. Board of Education (1954)** - The Court ruled that racial segregation in schools violated **equal protection**. - Justification: The decision was based on the constitutional principle of equality, not on religious or moral doctrines. **8️⃣ The Limits of Public Reason** **Exclusive vs. Inclusive Public Reason** - **Exclusive View**: - Only reasons based on political values (justice, fairness) count as public reasons. - **Criticism**: It's too restrictive and alienates religious or cultural perspectives. - **Inclusive View**: - Comprehensive doctrines (like religious beliefs) can be included if they are **translated** into public reason. - Ex.) Martin Luther King Jr. used religious rhetoric (Christian love) in his civil rights advocacy, but he connected it to public values like equality and justice. **Examples of Inclusive Limits** **Situation** **Exclusive View** **Inclusive View** -------------------------- --------------------------------------------------- -------------------------------------------------------------------------------------------------------- **Civil Rights (1960s)** No religious arguments allowed in public policy MLK\'s \"I Have a Dream\" blends religious ideals with political values like equality **Abortion Debate** Arguments should be framed around bodily autonomy Religious views on life can be presented if connected to shared political values (e.g., human dignity) **9️⃣ Key Takeaways** **Public Reason** - Public reason defines the shared principles for **constitutional essentials** and **basic justice**. - It excludes personal, religious, and ideological justifications in public political forums. **The Role of Public Reason** - Ensures that **political power is legitimate**, as decisions are justified by shared public reasons. - **Judges, lawmakers, and citizens** must respect it when voting, making laws, or issuing rulings. **Public vs. Nonpublic Reason** - **Public reason** is for constitutional issues. - **Nonpublic reason** is for civil society (churches, universities, social groups). **The Supreme Court** - Acts as an **exemplar of public reason** by justifying decisions on the basis of political values and constitutional principles. **Constitutionalism & Constituent Power** **Definition:** - ***[Constituent Power = the power of the PEOPLE to create or amend (revise) a constitution]***  **Rawl's Quote \#23 / Section 6 of Chapter 6:** - Constituent power = the power to set the rules of a game (in this case = the rules of a political & legal game) - People tend to depict constituent power as starting from scratch - Setting up rules according to its totally free will (with little to no constraints) - **5 Principles of Rawl's Constitutionalism:** - **1) The distinction between Constituent Power and Constituted (ordinary) Power (taken from Locke)** - BUT Locke thinks that constituent power is a power that operates UNDER the law - It's NATURAL LAW - But you can't have natural rights as the foundation of a legal system (many thinkers don't believe in natural rights) - Jeremy Bentham said that natural rights is "nonsense" - *[Rawls says voters have **constituted power** (NOT constituent power)]* - **2) The distinction between HIGHER and *[ordinary]* law** - *[Higher law = the expression of the people's constituent power (basically what's written in the constitution)]*; has the authority of "We the People" - *[Ordinary law = parliament's laws; has the expression & authority of the ordinary power of Congress & the electorate]* - Rawls makes a clear distinction between "the people" and "the voters" - **The people = the author of the constitution (includes MULTIPLE generations)** - *[The voters = a CONSTITUTED power]* - **3) The democratic constitution (written OR unwritten) reflects, in the language of higher law,  "the political ideal of the people to govern itself in a certain way"** - Instrumental view of the constitution: It's an instrument of the government for preventing conflict from endangering society - ***[Rawl's view of the constitution: The constitution is the translation of a higher divine law into political and legal language]*** - It translates a vague feeling of what distinguishes us into articles of the constitution - Ex.) Distinctiveness of the Italian constitution: - Rejects war as an instrument for resolving conflicts - **4) "In a democratically ratified c