Baldwin on Rawls and Animal Moral Personality @GuyJBaldwin

Guy Baldwin, Cambridge Faculty of Law, has published Rawls and Animal Moral Personality at 13 Animals 1238 (2023). Here is the abstract.

The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed. In this article, I contribute to the debate over the possibility of inclusion of animals in Rawls’s theory of justice by critiquing the rationale he gives for their omission: that they do not possess moral personality. Contrary to Rawls’s assumptions, it appears that some animals may possess the moral powers that comprise moral personality, albeit to a lesser extent than most humans. Some animals can act in pursuit of preferences and desires (and communicate them non- verbally), which might be taken as implicitly selecting a conception of the good; further, scientific research demonstrating inequity aversion and social play behaviors suggests that some animals can have a sense of justice relating to their own social groups. I conclude that Rawls’s theory needs to acknowledge any animals that can be considered to meet the threshold of moral personality, while the concept of moral personality as a range property may also require reconsideration.

Download the article from SSRN at the link.

Gingerich on Remixing Rawls: Constitutionalizing Cultural Liberties

Jonathan Gingerich, Washington University, St. Louis, is publishing Remixing Rawls: Constitutionalizing Cultural Liberties in volume 11 of the Northweastern University Law Review (2019). Here is the abstract.

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all citizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production.

Download the article from SSRN at the link.

Nielsen and Hartz on The Problem of Motivation in Hegel and Rawls

Carsten Fogh Nielsen, University of Aarhus, Department of Education, and Emily Hartz, Copenhagen Business School, Department of Organization, have published Why Be Just? The Problem of Motivation in Hegel and Rawls at 31 Ratio Juris 326 (2018). Here is the abstract.

At the heart of any theoretical problem of justice lies the problem of motivation: Even if we could conceive of a way to develop a comprehensive system of just laws, and even if we could rationally believe in the justice of these laws, how could we ever ensure that we—or anyone else—would be motivated to abide by them? By unearthing how the problem of motivation sways canonical discussions of justice, the article brings forth intrinsic similarities and differences in these discussions that are often overlooked in the literature. In particular, the article highlights intrinsic similarities in the analysis of the concept of justice in two central works that belong to the continental and the analytic tradition respectively and are otherwise rarely discussed together: Hegel’s Outlines of the Philosophy of Right and Rawls’s Theory of Justice.

The full text is not available from SSRN.

Just Rawling Along: A Theory of Justice: The Musical! @JusticeMusical

Proving that one can set anything to music, John Rawls is coming to the London stage. Well, sort of. (It has already played at the Edinburgh Fringe). On February 19, A Theory of Justice: The Musical! debuts at the Arts Theatre. Josh Seymour directs. More here.  Edinburgh Fringe trailer here.

The work is two hours, plus an intermission, so seems not a long piece, and not only not in pages. 

Peters on The Rise and Decline of the International Rule of Law and the Job of Scholars @MPILheidelberg

Anne Peters, Max Planck Institute for Comparative Public Law and International Law, is publishing The Rise and Decline of the International Rule of Law and the Job of Scholars in The International Rule of Law: Rise or Decline (Heike Krieger, George Nolte, and Andreas Zimmermann, eds.). Here is the abstract.

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment. The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

Download the essay from SSRN at the link.

Leung on Critique of Law in a Martial Arts Thriller: The Peril of Emotions, Limits of Nationality, and Pluralistic Laws

Janny H. C. Leung, University of Hong Kong, Faculty of Arts, School of English, has published Critique of Law in a Martial Arts Thriller: The Peril of Emotions, Limits of Rationality, and Pluralistic Laws at 18 Law/Text/Culture 56 (2016). Here is the abstract.

This paper explores the cinematic treatment of a cluster of themes – law, justice, morality, human emotions and social relationships – in what appears in genre to be a fairly straightforward Chinese martial arts film, Wu Xia (2011). The film is atypical for its genre, however, both in the characters it depicts and in the narrative it constructs. In particular, Wu Xia has only three fight scenes and is heavy with dialogue (both in the broad, conversational sense of spoken dialogue and in the more technical, Bakhtinian sense of dialogism (1992)). In a striking departure from genre conventions, the film develops what amounts to a cinematic commentary on jurisprudential debates about free will, punishment and ways of attributing responsibility and blame for human behaviour (for legal discussion of these issues, see Rawls 1999). Taking Bordwell (1989)’s approach to interpreting filmic meaning as exemplary in its attention simultaneously to conventional form, distinctive rhetorical styles, and historicity, this article offers a reading of Wu Xia that is especially concerned with interconnections between the film’s formal characteristics, its stated and implied meanings, and its likely impact on specific cinema audiences. Focusing on the film’s distribution simultaneously in two different Chinese language versions, one released in Hong Kong and the other throughout mainland China, the analysis compares significant language choices made in the film’s soundtrack and relates them to the respective social, political and historical contexts of film’s distribution in its two different cuts. Overall, the article suggests that Wu Xia is highly distinctive in several ways: in how it depicts the practice of law as being starkly at odds with the emotional experience of being human; in how little faith it expresses in the rule of law; and, perhaps most significantly, in its open ridiculing of a formalistic approach to justice. The article concludes by discussing the significance of these aspects of the film in the political dynamics of China and postcolonial Hong Kong.

The full text is not available from SSRN.

Edmundson on the Charlie Hebdo and Paris Attacks, John Rawls, and Liberal Political Culture

William A. Edmundson, Georgia State University College of Law, is publishing Charlie Hebdo Meets Utility Monster in The Critique. Here is the abstract.

The Charlie Hebdo massacre in January 2015 and the subsequent attacks of November 13 cast a garish light onto a conundrum at the center of how liberal democracies understand themselves. The Syrian emigrant crisis has added further color. How can a tolerant, liberal political culture tolerate the presence of intolerant, illiberal, sub-cultures while remaining true to its principles of tolerance? The problem falls within the intersection of two developments in the thinking of John Rawls, the great American political philosopher who died in 2002. The later Rawls struggled with the problem of how society might stably survive the clash of plural sub-cultures that a liberal society - unless it is oppressively coercive - must itself foster and allow to flourish. And he separately struggled with the problem of how liberal peoples might peacefully share the planet with illiberal, but "decent" peoples elsewhere. This article shows that Rawls's two solutions do not easily mix.

Download the article from SSRN at the link.

Legal Constitutionalism In the Irish Constitutional Tradition

Tom Hickey, Dublin City University, is publishing Judges as God's Philosophers: Re-Thinking 'Principle' in Constitutional Adjudication in Judges, Politics and the Irish Constitution (L. Cahillane, J. Gallen and T. Hickey (eds.), Manchester University Press, 2016). Here is the abstract.

This chapter identifies and critiques two strands of 'legal constitutionalism' in the Irish constitutional tradition: a classical 'minimal state' strand and a contemporary Rawlsian/Dworkinian strand. It argues against both on the basis that, in different ways, they fail to account for the political and contestable nature of rights. The chapter argues for a model of constitutionalism that accounts for the principled contribution that judicial review can make to public deliberation and outcomes, but that similarly accounts for its potential weaknesses.

Download the chapter from SSRN at the link.

Those Krazy Kollege Kids

....What will they think of next? Jose Calvo Gonzalez points out that John Rawls has made it to Broadway--well, the Oxford stage, anyway.

Those wild "Oxfordians" have set A Theory of Justice to music. (Don't know what they think about Shakespeare, but what uses they have for Rawls, Nozick, Kant, Aristotle, and the rest is pretty clear). And "they" said it couldn't be done.

A New Book On Justice and Injustice

New from Routledge



The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

The State of Nature: Whence Politics?

William A. Edmundson, Georgia State University College of Law, has published Politics in a State of Nature. Here is the abstract.

Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state’s just powers and prerogatives.

Thus described, a state-of-nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state’s resulting normative endowment, which includes a (purported) moral power to impose duties of obedience.

State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a “natural executive right” to punish wrongdoing. Rawls excluded personal desert from the “original position,” his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory.

The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers.

This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state’s unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.

Download the paper from SSRN at the link.