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正义的第一原则:政治权力的合法性

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发表于 7/19/2012 15:42:19 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 4/10/2015 21:51 编辑

正义的第一原则:政治权力的合法性



南郭点评:当代最著名的政治哲学理论家罗尔斯在其名著《正义的理论》中提出正义的两项基本原则:其一,每个人均有与其他人所拥有的相似的最充分的基本自由的平等权利;其二,社会和经济的不平等得按下述两种途径安排:(1)合理预期按每个人的利益;(2)政府公职平等向社会公众开放。罗尔斯解释道:公民的基等自由权大致包括:政治自由(投票权和有资格担任公职)与言论与结社自由;信仰自由和思想自由;拥有私有财产的权利和自由;免受法治定义之任意逮捕与搜查的自由。由于中共国的实践在各方面与罗尔斯的正义理论的两项基本原则完全背道而驰,既不存在公民平等的政治自由和政治权利,也没有任何公平合理的公职向社会公众平等开放的任何可能;因而中共暴政成为全球最极度不公不义的山寨国是必然的;不过,更重要的是正如政治理论家Rainer Forst 先生在其批评罗尔斯的正义论之“正义的两种画面”Two Pictures of Justice)指出:罗尔斯的正义两原则,仅涉及正义的一种画面,是一种“正义的语法”解释仅涉及分配正义,程序正义方面,而未触及更未阐明正义最重要的第一原则:政治权力归属的正当合法性;因为反抗非正义的基本冲动并非主要基于想要得到某种东西,而是不想受专制暴政的任意蹂躏宰割骚扰,要求统治的基本合法性。分配正义仅是第二步的问题,由谁决定政策和如何实施才是政治与社会正义最关健的头号问题。吾以为Forst 先生的立论与理由非常充分,更符合当今中国现实。因为正义首先涉及权力问题,与政府与人民及人与人之间的关系密切相关,不首先解决政治权力的合法性基础,亦即由谁制定法律与政策,决定谁能获得什么利益,要想根本解决社会政治正义问题是完全不可能的;正因为如此,罗尔斯在其正义理论中似乎有一项前提条件:“一个业已建立良好秩序的社会”;质言之,其正义理论仅适用于西方发达的自由民主社会,而不能直接适用于类似中共极权专制暴政此种罪恶的政治体制。Forst 先生的下述基本论点十分精彩:

Political and socialjustice is a matter of how a context of political rule and social cooperationis constituted;and the first question in this regard is how individualsare involved in political and social relations generally and in the productionof material and immaterial goods in particular, so that a result is just onlyif it is produced under conditions that can be accepted by all under conditionsof non-domination”。
Justiceis not a criterion for universal levels of goods or for all efforts to overcomeprivation but for quite specific ones, namely, those which eliminate arbitraryrule– i.e. domination and exploitation. The primary demand of justice is not that human beingsshould obtain certain goods but that they should be agents equipped with equalrights within a social context”。
a supreme principleholds within such a framework – namely, the principle of general and reciprocaljustification – which states that everyclaim to goods, rights or liberties must be justified in a reciprocal andgeneral manner, where one side may not simply project its reasons onto theother but has to justify itself discursively.
thecentral insight for the problem of political and social justice –namely, that thefirst question of justice is the question of power. For justice is not only a matter of which goods, forwhich reasons and in what amounts, should legitimately be allocated to whom,but in particular of how these goodscome into the world in the first place and of who decides on their allocation and how this allocation is made.
thequestion of power is the first question of justice means that justice has its proper place where the centraljustifications for a social basic structure must be provided and theinstitutional ground rules are laid down which determine social life from thebottom up. Everything depends, if you will,on the relations of justification within a society.
This dignity is violated when individuals are regarded merely asrecipients of redistributive measures and not as independent agents of justice.
a conceptualdistinction between fundamental (minimal)and full (maximal) justice.Whereas the task of fundamental justice isto construct a basicstructure of justification, the task offull justice is to construct a justifiedbasic structure.
Fundamental justice is violatedwhen primary justification power is not secured for all equally in the mostimportant institutions.




Two Pictures of Justice

Rainer Forst

1. At various times, human beings have made depictions(describe) of justice. She appears as the goddessdiké or justitia, sometimes with, sometimes without ablindfold, though invariably with the sword and symbols of even-handedness andnon-partisanship; one need only think, forexample, of Lorenzetti’s ‘Allegory of Good Government’ in the Palazzo Pubblicoin Siena.Mostly she is depicted as beautiful and sublime, yet at other times also ashard and cruel, as in Klimt’s famous paintings for Vienna University (whichwere destroyed during the war).
Studying such representations is a fascinating enterprise.[1] However, the understanding of ‘picture’ which informs my remarks is a different, linguistic,one. Inhis Philosophical Investigations, Wittgenstein writes: ‘A picture held us captive. And we could not get outside it, for itlay in our language and language seemed to repeat it to us inexorably(impossibleto stop or prevent)’.[2]A picture of this kind shapes our language in a particular way, brings togetherthe various usages of a word, and thus constitutes its ‘grammar’. But suchpictures can also point our understanding in the wrong direction, much as, inviewing the famous picture puzzle of a duck and a rabbit, one can see only oneaspect at a time,[3]or as our thinking is held captive by particular examples that lead us to falsegeneralizations.[4]
In what follows,I would like to discuss two ways of thinking about justice, one of which I wantto argue inadmissibly limits and simplifies our understanding of justice andindeed leads it in a wrong direction. I prefer to regard these two competingnotions of justice as ‘pictures’ because they bring together a wealth ofconceptions and images, and not only of justice, but also in particular ofinjustice. The latter seems to be the more concrete, immediate phenomenon,being associated with stories and images of the oppressed, the wretched, andthe downtrodden(treatbadly by people has power). Thus a ‘picture of justice’ stands for avery general and at the same time ‘thick’ and concrete way of thinking aboutjustice and injustice.

2. The picturethat holds our thinking concerning social or distributive justice ‘captive’ isthe result of a particular interpretation of the ancient principle suum cuique – ‘To each (or from each)his own’ – which has been central to our understanding of justice since Platoand is interpreted in such a way that the primary issue is what goodsindividuals justly receive or deserve – in other words, who ‘gets’ what. Thisthen leads either to comparisons between people’s sets of goods, and thus torelative conclusions, or to the question of whether individuals have ‘enough’of the essential goods, regardless of comparative considerations. Granted, thesegoods- and distribution-centred, recipient-orientedpoints of view have their merits, for distributive justice is, of course,concerned with the goods individuals can appropriately claim. Nevertheless thispicture obscures essential aspects of justice. In the first place, the questionof how the goods to be distributed come into existence is neglected in a purelygoods-focused view, hence issues of production and its just organization arelargely ignored. Furthermore, there is the second problem that the political question of who determines thestructures of production and distribution and in what ways is disregarded ordownplayed, as though a great distribution machine – a neutral ‘distributor’[5]– could exist that only needs to be programmed correctly using the right ‘metric(relating to)of justice.[6]But, according to the picture of justice I propose, it is not only essentialthat there should not be such a machine, because it would mean that justicewould no longer be understood as a political accomplishment of the subjectsthemselves but would turn them into passive recipients of goods – but not ofjustice. This thought also neglects, in the third place, the fact thatjustified claims to goods do not simply ‘exist’ but can be arrived at onlythrough discourse in the context of corresponding procedures of justificationin which – and this is the fundamentalrequirement of justice – all can in principle participate as free and equalindividuals (as I will argue below on the basis of a discourse-theoretical interpretationof the alternative picture of justice).
Finally, in thefourth place, the goods-fixated view of justice also largely leaves thequestion of injustice out of account; for, by concentrating on overcomingdeficiencies in the distribution of goods, someone who suffers want as a resultof a natural catastropheis equivalent to someone who suffers want as a result of economic or political exploitation. Although it iscorrect that help is required in both cases, according to my understanding ofthe grammar of justice in the one case it is required as an act of moral solidarity, in the other as an actof justice conditioned by the natureof one’s involvement in relations of exploitation and injustice and thespecific wrong in question.[7]Hence there are different grounds for action as wellas different kinds of action which are required. Ignoring thisdifference can lead to a situation where – in a dialectic of morality, as itwere[8]– what is actually a requirement of justice is seen as an act of generousassistance or ‘aid’. A critique of such a dialectic can already be found inKant:
Having theresources to practice such benevolence as depends on the goods of fortune is,for the most part, a result of certain human beings favored through theinjustice of the government, which introduces an inequality of wealth thatmakes others need their beneficence. Under such circumstances, does a richman’s help to the needy, on which he so readily prides himself as something meritorious, really deserve to be calledbeneficence at all?[9]
For all of thesereasons, it is especially important when dealing with questions of distributivejustice to recognize the politicalpoint of justice and to liberate oneself from a one-sided picture fixated onquantities of goods (or on a measure of well-being to be produced by them). Ona second, fuller and more apt picture, by contrast, justice must be geared to intersubjective relations and structures,not to subjective or putatively objective states of the provision of goods or of well-being. Onlyin this way, by takinginto consideration the firstquestion of justice – namely, the question of the justifiability of socialrelations and, correspondingly, how much ‘justification power’ individuals orgroups have in a political context – can a radical, critical conception ofjustice be developed, one which gets at the roots of relations of injustice. Inshort, the basic question of justice is not whatyou have but how you are treated.[10]

3. What mightjustify one in speaking of a misleading or ‘false’ as opposed to a more ‘apt’picture of justice, given that the goods- or recipient-centred notion canappeal to the time-honoured principle of suum cuique? Is there, in contrast to this, amore original, deeper meaning of justice which the alternative picture capturesmore fully? In my opinion there is. Consider the very concept of justice. Thatconcept possesses a core meaning to whichthe essential contrasting concept is that of arbitrariness,[11]understood in a social and political but not a metaphysical sense – i.e.assuming the form of arbitrary rule by individualsor by a part of the community (for example, a class) over others, or ofthe acceptance of social contingencies which lead to social subordination anddomination and are rationalised as an unalterable fate, even though they are nothing of the sort. Ametaphysical conception of arbitrariness in the context of social justice would go further and aim toeradicate or compensate for all differences between persons giving them anadvantage over others due to brute luck, regardless of whether they lead tosocial domination.[12]This goes too far according to the second pictureof justice; justice must remain a human task aiming at non-domination,not one for the gods aiming at a world free from natural or historicalcontingency. Arbitrariness as domination is a human vice of injustice, contingency generallyis a fact of life.
The term ‘domination’ is important in this context, for itsignifies the arbitrary rule of some over others– i.e. rule without proper reasons and justifications and (possibly) withoutproper structures of justification existing in the first place,[13]and when people engage in struggles against injustice they are combating formsof domination of this kind. The basic impulse thatopposes injustice is not primarily one of wanting something, or more ofsomething, but is instead that of not wanting to be dominated, harassed, oroverruled in one’s claim to a basic rightto justification.[14]This moral right expresses the demandthat no political or social relations shouldexist that cannot be adequately justified toward those involved. Thisconstitutes the profoundly political essence of justice, which is not captured, but issuppressed, by the recipient-focused interpretations of the principle suumcuique. The core issue of justice is whodetermines who receives what, i.e. the question answered in Plato interms of the ideas of the supreme good and the philosopher king.[15]In my picture, the demand for justice is an emancipatoryone; reflexively speaking, it rests on the claim to be respected as a subject of justification, i.e. to be respected inone’s dignity as a being who offers and demands justifications.[16]The person who lacks certain goods should not be regarded as the primary victimof injustice but instead the one who does not ‘count’ when it comes to decidingabout the process of producing and allocating of goods.

4. One can cut different pathsthrough contemporary discussions on justice. However, the one opened up by thequestion of the two pictures of justice is especially instructive, for fromthis perspective certain conventional adversaries unexpectedly find themselvesin the same boat.
An example isprovided by the recent debate concerning equality.By this is actually meant two points of discussion: on the one hand, thequestion ‘Equality of what?’ – ofresources, welfare, or capabilities[17]– and, on the other, the question ‘Whyequality at all?’ From the perspective of the difference between the twopictures of justice, however, it becomes apparent that both the advocates andthe opponents of equality frequently operate with the same understanding, andthis often finds expression in a specific image, that of the mother who has todivide up a cake and asks herself how this should be done.[18]Egalitarians argue for the primacy of theequal distribution of goods, according to which other arguments for legitimate unequal distributions – for instance,ones based on need, merit or prior claims –then have to be treated as special reasons. Alternatively, an egalitariancalculus of need satisfaction – a measure of welfare – is posited which servesas the goal of distribution.[19]However, in the process the questions of how thecake was produced and, even more importantly,of who gets to play therole of the mother, remain largely unthematised. Yet that is the primary question of justice. Attempts are made toanswer it in terms of the distribution of a ‘good’ of ‘power’.[20]But no such ‘good’ exists as something to be distributed; on the contrary, powercomes about in a different way – namely, through processes of recognitionwithout a prior distributive authority.[21]

5. Analogousproblems are encountered on the side of the critics of equality. In HarryFrankfurt’s view, for example, the defenders of egalitarianconceptions of justice cannot be concerned with the value of equality at all; for if you ask them whatis so bad about inequality, they respond by pointing to the negative consequences of life in a society ofinequality, in particular to the fact that certain people lack goods which areimportant for living a satisfactory life.[22]What is bad about such a life is supposed to be that the people in questionlack essential goods, not that others are better off.[23]
So-called ‘sufficientarians[24]have taken up these arguments and argue that ‘at least the especiallyimportant, elementary standards of justiceare of a nonrelational kind’,[25]and that justice is concerned with creating ‘conditions of life befitting humanbeings’ that can be measured according to ‘absolute standards of fulfilment’,not according to what others have. On this view, a universal conception of thegoods ‘necessary for a good life’ should be produced with reference to particular lists of basicgoods or capabilities.
These approachesare also vulnerable to serious objections. Thus Frankfurt’s assertion that the pivotalissue is not how much others have but only whether I have ‘enough’ isvalid only when conditions of background justice pertain, that is,only when others have not previously takenadvantage of me. Otherwise it could not be reconciled with my dignity asa being who is in principle worthy of equal moralrespect (a standard that Frankfurt emphasizes). Hence we must look forreasons for such background justice elsewhere.
But, inaddition, the idea of ‘having enough’ or ‘getting enough’ does not get at the essence of justice, i.e. theprevention of social domination. Justice isalways a ‘relational’ matter; it does not first inquire into subjectiveor objective states of affairs butinto relationsbetween human beings
and what they owe to each other for what reasons. Inparticular, we do not explain the requirements of justice on the model ofmorally required aid in specific situations of want or need; instead they come into play insituations where what is atstake are relations between human beings that are fundamentally in needof justification, where those involved are connected by political relations ofrule or by social relations of cooperation in the production and distributionof goods – or, as is often the case, by relations of ‘negativecooperation’, of coercion or domination (whether by legal, economic orpolitical means). It makes a huge difference whether someone is deprived of certain goods and opportunities unjustly andwithout justification or whether he or she lackscertain goods for whatever reason (for example, as a result of a natural catastrophe, as mentioned above). Bylosing sight of the former context, one misses or conceals the problem ofjustice as well as that of injustice. Justice requires that those involved in acontext of (positive or negative) cooperation should be respected as equals.That means that they should enjoy equal rights to take part in the social and political order of justification in which theconditions under which goods are produced and distributed are determined. Thestate-mandated assignment of goods in accordance with ‘absolute’ standards that abstract from thereal context of justice or injustice is far from doing justice to the ‘dignity’of the individual who seeks justice.

6. But whatexactly is supposed to be wrong with taking a sufficiently nuanced theory of basic capabilities as the basis for atheory of justice that would putan end to discussions concerning basic goods, resources, welfare, etc.?Isn’t justice after all concerned with the satisfaction of the basic claim tobe able to live an autonomous good life? Isn’t a theory that disregards theresults of distribution blind, indeed blinder than any depiction of Justitia? Martha Nussbaum argues thus inher study Frontiersof Justice against Rawls and for a‘minimal level of justice’ in accordance with a list of basic capabilities andfaculties that must be secured.[26]A results-oriented view of justice knows thecorrect outcome and then looks for the necessary procedure leading to it in thebest way possible (in Rawls’s terms, ‘imperfectprocedural justice’).[27]The procedures themselves are secondary. Against the Rawlsian idea of ‘pure procedural justice’, in which the acceptabilityof the result depends on the quality of the procedure, Nussbaum argues asfollows:
Defenders of outcome-oriented views are likely to feel thatprocedural views putthe cart before the horse: for surely what matters for justice isthe quality of life for people, and we are ultimately going to reject anyprocedure, however elegant, if it doesn’t give us an outcome that squares wellwith our intuitions about dignity and fairness. … it seems to the outcome-oriented theorist as if a cook has a fancy, sophisticated pasta-maker, and assuresher guests that the pasta made in this machine will be by definition good,since it is the best machine on the market.[28]
Here, too, thepictures are revealing. The idea of a ‘machine’ signals an exclusive orientation to results: ‘Thecapabilities approach goes straight to the content of the outcome, looks at it,and asks whether it seems compatible with a life in accordance with human … dignity’.[29]Justice is an instrument that produces something,and the result counts, not the internal workings of the machine. Butthis misses the political point of justice. Political and social justice is a matter of how a contextof political rule and social cooperation is constituted; and the first question in this regard is how individuals areinvolved in political and social relations generally and in the production ofmaterial and immaterial goods in particular, so that a result is just only ifit is produced under conditions that can be accepted by all under conditions ofnon-domination.[30]From a relational point of view, it might be a ‘good’ thing if a greatLeviathan were to hand out manna as an all-purpose good (in comparison to asituation of dire need), but that would have little to do with political and social justice. Werea dictatorship to ensure that basic capabilities were largely assured, thatwould indeed be ‘better’ by certain standards than a destitute(extremely poor)democracy, but it would not be more just. Justice is not a criterion for universal levels of goodsor for all efforts to overcome privation but for quite specific ones, namely,those which eliminate arbitrary rule – i.e. dominationand exploitation. The primary demand ofjustice is not that human beings should obtain certain goods but that theyshould be agents equipped with equal rights within a social context –whether national or transnational[31]– who can raise specific claims to goods on this basis.

7. A number oftheories are ambivalent withrespect to the two pictures of justice and contain aspects of both.Amartya Sen’s interpretation of the idea of justice is an example. He makes adifferent distinction between two basic ways of reasoning about justice fromthe one I suggest. Whereas in his view ‘transcendental(goint beyond human knowledge and into spiritarea) institutionalism’ concentrates on an idealof perfect justice and on institutions rather than on actual behavioursof persons, ‘realization-focused comparison’, the approach which Sen favours,emphasizes comparative assessments of states of affairs and of ‘the kind oflives that people can actually lead’.[32]Against ideal theories, Sen arguesthat comparative assessments of the quality of life and the justice of asociety can be made even when there is disagreement over ‘perfect’ justice, andhe proposes the capability approach as explaining the ‘material of justice’ and an account of public reason as the medium of judgment.
If we compareSen’s distinction with the one between the two pictures, it becomes apparentthat the relational and structure-oriented pictureof justice which I favour does not pursue an abstract‘ideal theory’ but enquires instead into the social relations of rule ordomination that exist and need to be transformed into justifiablerelations. Also, the relational picturedoes not just takeinstitutions into account but also social relations in a more comprehensive sense,though it sees institutions as essential for realisingjustice. Finally, the second picture of justice shares with Sen thecritique of a ‘goods-centred’[33]view when it comes to the material of justice.

Still, despite these parallels, theapproach favoured by Sen, viewed from a relationalor practice-oriented perspective on justice, neglectsimportant considerations of justice – namely, the question of injustice,the question of obligations, thequestion of principles and thequestion of institutions of justice.With regard toinjustice, as explainedabove, how asymmetries of capabilities, if we take that as the material of justice, actually came about makes anessential difference. Are they the result of deliberate action, of structuresthat benefit some rather than others and are upheld deliberatively, or are theythe result of circumstances the responsibility for which cannot be ascertained?For any theory that, like Sen’s, aims to eradicateor at least reduce concrete forms of injustice, it is essential to havea clear focus on these injustices and their historicaland structural background. To be sure, a lackof basic capabilities due to hunger or bad health needs to be overcomewhatever story is told about how it arose; but for a theory of justice it is essential to ask thegenealogical question. Sen is aware of that point when, for example, he assertsthat ‘there is a real difference between some people dying of starvation due to circumstancesbeyond anyone’s control and those peoplebeing starved to death through the design of those wanting to bring about thatoutcome’.[34]
But because the capability approach is primarily focused on outcomes, its ability to integrate suchdistinctions into its basic framework is limited.
This hasimplications for its account of obligations.Justice, according to the relational view, enquires into the relations between persons in order toascertain responsibilities of justice, ranging from those who wilfullycommitted an injustice, to those who merely benefit, up to those who are onlyinvolved insofar as they have the means to change things for the better.According to the second picture, locating these responsibilities in the right wayis itself a demand of justice. Sen,however, has a more consequentialist conception ofobligation, one based on capacities and powers of effective action.[35]Although he accepts the Kantian distinction between perfect and imperfectobligations,[36]the thrust of his argument about power-basedobligations of justice is that they are conceived as imperfectobligations directed at certain outcomes.
Sen defends thethesis of a plurality of valid principlesof justice, be they principles of need, contribution or utility, as expressedin the example of the distribution of a flute among children who have differenttypes of claims to it.[37]Moreover, he makes a strong case for the possibility of judgments of justicewithin the framework of public reason evenin the absence of any consensus on perfect justice.Yet, at this point, the argument for a ‘pluralgrounding’[38]of judgments of justice and for a ‘plurality ofrobust and impartial reasons’[39]in a given case is too strong, for it leads to an essential vagueness and contestednessas to the issue of trumping principles of justice. This is not just the case when it comes toan equivalent of the Rawlsian first principle of justice; with regard to that, Sen affirms that the capability perspective cannot provide any suchprinciple.[40]But also with respect tojudgments of social justice – such aspriorities among capabilities and among persons with different deficiencies in capabilities – Sen’s approach doesnot provide any general principles of assessment.
As far the question of institutions is concerned, Sen’s critique of ‘transcendental institutionalismleaves little room for a positivetheory of institutions. Yet institutions represent essential expressions of social life andthey are the primary objects of assessment when it comes to issues of socialjustice. Individual actions are also important objects of assessment in thisregard, though often as part of institutional structures. Most importantly,institutions serve as the guarantors for the realization of principles of equalrespect, especially in the guise of institutions of discursive justification.Institutions give expression to these principles, and how institutions work canviolate them, not just with respect tooutcomes, but also and especially when it comes to processes. Sen is alert tothe challenge posed by a process-oriented pictureof justice to his view, and that is why he suggests the notion of ‘comprehensive outcomes’ rather than mere ‘culmination(reach a climax or a point of highestdevelopment ) outcomes’, for the former take procedural issues into account.[41]From the perspective of comprehensive outcomes, it is important how a resultcame about – who participated in a decision,which interests were takeninto account, which considerations were decisive, what kind ofpossibilities there were for contestation, to mention just a few. All of these questionsreflect criteria for the justice of institutions,and thus any comprehensive(dealing with all aspectof something) theory must take them into account. But, as Sen admits, the capabilityapproach ‘cannot pay adequate attention to fairness and equity involvedin procedures that have relevance to the idea of justice’.[42]I would go even further and suggest that the approach, since it focuses onoutcomes and states of affairs, is not only incapable of generating an accountof fairness by its own means, but it also needs to accept the priority of theprocess aspects when it comes to the question of justice.[43]For justice is about who determines (and with what justification) the basicstructure of society as well as its essential institutional workings; and if wewant to rule out the great benevolent Leviathan mentioned above as realizingjustice by distributing means of well-being, we need to argue for the priority of principles of equal respect, participation and non-domination within the basicstructure of a society or across polities in a transnational context.Conceptually speaking, itis one thing to argue for a better distribution and realization of basiccapabilities by way of a theory of social developmentand progress, and it isanother thing to argue for a comprehensive conception of social andpolitical justice. If we focusprimarily on realizations, then important aspects of (in)justice will beoverlooked.[44]The most important of all principles ofdistribution, therefore, is the one whichdetermines who has the authority to decide about who gets a good like the flute(in Sen’s example) in the first place.

8. HereI would like to offer a brief discussion of Rawls’s theory of justice.
Since RobertNozick’s influential critique, Rawls’s theory is generally interpreted asbelonging to the first, allocative-distributive andrecipient-oriented understanding of justice.
Nozickcriticises Rawls’s principles of justice as ‘end-stateprinciples’ which correspond to pre-given patterns which illegitimately constrain the liberty of marketparticipants.[45]
But Rawls’s theory is also regarded from an entirelydifferent perspective such as that of Thomas Pogge, which is far removedfrom libertarian approaches, as a ‘purely recipient-oriented approach’, becauseit concentrates on comparisons between distributive results as regards basicgoods which correspond to certain higher-level interests of persons in suchgoods.[46]
This assessment has a certain justification, given the importance of primary goodsin Rawls’s theory. Nevertheless, in my view, Rawlsdoes not share the first but the second picture of justice, the onewhich accords priority to social structures and relations and the social statusof the individual.
Let me explain this briefly.
In the first place, the Kantian character of Rawls’s theory implies thatthe autonomy of free and equal persons,which is at the normative heart of the approach,is not the autonomy of individuals who are primarily conceived as recipients (person who receive something)of goodswhich they would need in order to lead a ‘good life’.
It is rather theconstructive autonomy of free and equal subjects of justification whichmanifests itself in the fact that the persons are able toregard the principles of justice as morally self-given; hence, the citizensview the social basic structure which is grounded in this way as the socialexpression of their self-determination.[47]
The essential conception of autonomy is the autonomy toactively determine the basic structure, notthe autonomy to enjoy its goods (even though this is also important).
The emphasis on public reason in the later works underscores this because public reason represents the medium of discursivejustification in which an autonomous conception of justice is grounded that allcan accept as free and equal:
‘In affirming the political doctrine as a whole we, ascitizens, are ourselves autonomous, politically speaking.’[48]
An important aspect of the Kantian background of the theory consists in thefact that its central concern is to exclude the aspects of the social world‘that seem arbitrary from a moral point ofview’ both in justifying the principles and in the institutions of the basic structure.[49]
In this way differences in natural endowments and socialinequalities should not lead to advantages that cannot be legitimised,especially towards the worst off.
This is a criterion for social relationsbetween citizens of a ‘well-ordered society’, not primarily a criterion fordetermining the amounts of goods to which everyone can lay claim.[50]
That the pivotal issue here is theabsence of relations of unjustifiable social rule – hence, expressed in adifferent language, nondomination –is in my view the most appropriate interpretation of this idea of avoiding social arbitrariness.
This leads to the most important conceptin this regard, one which marks the difference from libertarianism most clearly– namely, that of social cooperation.
Rawls’s conception of ‘procedural justice’is geared to social relations and structuressuch that it leads to a system of social cooperationwhich expresses the ‘sociability of human beings’ in such a way that theycomplement each other in productive ways and participatein a context of cooperation which includes all as politically andsocially autonomous members – think of the picture of the orchestra employed byRawls.[51]
It is particularly significant in this regard how Rawls contrasts hisconception of justice as fairness with aconception of ‘allocative(give resource to )justice’:
The problem of distributivejustice in justice as fairness is always this:
How are the institutions of the basic structure to be regulated as oneunified scheme of institutions so that a fair, efficient, and productive systemof Social Corporation can be maintained over time, from one generation tothe next?
Contrast this with the very different problem of how a given bundle of commodities is to be distributed, orallocated, among various individuals whose particular needs,desires, and preferences are known to us, and who have not cooperated in any way to produce thosecommodities.
This second problem is that of allocative justice. [...] We reject the idea of allocative justice as incompatible with the fundamental idea by which justice as fairness isorganised
Citizens are seen as cooperating to produce the social resources on which their claims are made.
In a well ordered society … the distribution of income and wealthillustrates what we may call purebackground procedural justice.
The basic structure is arranged so that when everyone follows the publicly recognised rules ofcooperation, and honours the claims the rules specify, the particulardistributions of goods that result are acceptable as just … whatever thesedistributions turn out to be.[52]
The overriding issue within such a context of production anddistribution is who the individuals ‘are’, and not primarily what theyreceive according to an independent yardstick.
Thedecisive point is that the institutionsfunction in accordancewith justified principles, such as the differenceprinciple, and do not involve any socialprivileges, and that they do not lead to the creation and cementing ofgroups which are largely excluded from the system ofcooperation and permanently depend on allocative transfers of goods.
This is also what underlies Rawls’s emphatic criticism of the capitalist welfare state model, because this, incontrast to a ‘property-owning democracy’,does not ensure that the ownership of wealth andcapital is sufficiently dispersed and as a result cannot prevent ‘asmall part of society from controlling the economy, and indirectly, politicallife as well’.[53]
Here I cannot explore further to what extent Rawls’stheory sufficiently accommodates the principle that socialasymmetries (lack of symmetry: the equality being similar or equal) arein need of justification and provides for corresponding institutional practicesof justification. The remarks below show how a discourse-theoretical conceptiondiffers in fundamental ways from the Rawlsian conception.


9. Let us reviewthe essential pointsmade thus far from a constructive perspective.I have defined justice as the human virtue andmoral-political imperative to oppose relations of arbitrary rule or domination.Domination is rule ‘without justification’ and itis assumed that a just social order is one to which free and equal personscould give their assent – not just their counterfactual assent but assent basedon institutionalised justification procedures. This is a recursive implication of the fact thatwhat is at stake in political and social justice is norms of an institutionalbasic structure which lays claim to reciprocal and universal validity. Thus a supreme principleholds within such a framework – namely, the principle of general and reciprocaljustification – which states that everyclaim to goods, rights or liberties must be justified in a reciprocal andgeneral manner, where one side may not simply project its reasons onto theother but has to justify itself discursively.
According tothis principle, as Iremarked above, each member of a context of justice has a fundamental right to justification, that is, a rightto be offered appropriate reasons for the norms of justice that are supposed tohold generally. Respect for this right is a universal requirement, and themoral equality expressed by it provides the foundation for farther-reachingclaims to political and social justice.[54]Every further norm of justice is relational in thesense that it must be constructed via a procedure of reciprocal-generaljustification. Then requirements of justiceare not moral acts of assistance but obligatory acts within a social system of ruleand cooperation.
Thedecisive criteria of justice, therefore, are those of reciprocity and generality, notwithstanding theplurality of goods and normative viewpoints concerning the distribution of educational opportunities, health caregoods, etc. These criteria serve to filter out unacceptableclaims to privilege, for the intrinsicsocial dynamic of justice is always geared in the first instance to thequestion: Which positions of advantageare not justifiable towards thosewho do not enjoy these advantages but are nevertheless supposed to recognizethem?
This brings usto the central insight for the problem ofpolitical and social justice – namely, that the first question of justice is the question of power.For justice is not only a matter of whichgoods, for which reasons and in what amounts, should legitimately be allocatedto whom, but in particular of how these goodscome into the world in the first place and of who decides on their allocation and how this allocation is made. Theories of a predominantlyallocative-distributive kind are accordingly ‘oblivious to power’ insofar as they conceiveof justice exclusively from the ‘recipient side’, and if necessary call for ‘redistributions’, without emphasizing thepolitical question of how the structures of production and allocation of goodsare determined in the first place. The claim that the questionof power is the first question of justice means that justice has its proper place where the centraljustifications for a social basic structure must be provided and theinstitutional ground rules are laid down which determine social life from thebottom up. Everything depends, if you will,on the relations of justification within a society. Power, understood asthe effective ‘justificatory (prove to be right orreasonable)power’ of individuals, is thehigher-level good of justice. It is the ‘discursive’(wandering fromsubject to subject) power to demand and provide justifications and to challengefalse legitimations. This amounts to an argument for a ‘political turn’ in thedebate concerning justice and for a criticaltheory of justice as a critique ofrelations of justification.[55]
The argumentoutlined makes possible an autonomous,reflexively grounded theory of justice that rests on no other values or truthsbesides the principle of justification itself. The principle in question,however, is not merely a principle of discursivereason but is itself a moral principle.[56]This constitutes the Kantian character of theapproach, which means that it emphasizes the autonomy of those for whomcertain norms of justice are supposed to be binding – in other words, theautonomy and dignity that consists in being subject to no norms or structuresother than those which can be justified toward the individual. This dignity is violated when individuals are regardedmerely as recipients of redistributive measures and not as independent agentsof justice.

10.A comprehensive theory of political and socialjustice can be constructed on this basis, something at which I can onlyhint here.[57]First we must make a conceptual distinction between fundamental (minimal) and full (maximal)justice. Whereas the task of fundamentaljustice is to construct a basic structure of justification, the task of full justice is to construct a justified basic structure. Theformer is necessary in order to pursue the latter, that is, a‘putting-into-effect’ of justification through constructive, discursive democratic procedures in which the‘justificatory power’ is distributed as evenly as possible among the citizens.This calls for certain rights and institutions and a multiplicity of means andspecific capabilities[58]and information, including real opportunities to intervene and exercise controlwithin the basic structure – hence, not a ‘minimalist’ structure, yet onejustified in material terms solely on the basis of the principle ofjustification. The question of what is included in this minimum must belegitimized and assessed inaccordance with the criteria of reciprocityand generality. The result is a higher-level, discursive version of theRawlsian ‘difference principle’, which,according to Rawls, confers a ‘veto’ on those who are worst off: ‘those whohave gained more must do so on terms that are justifiable to those who havegained the least’.[59]This principle does not as a result itself become a particular principle of distribution (as in Rawls), however,but a higher-level principle of justification ofpossible distributions.[60]
To put it inapparently paradoxical terms, fundamental justiceis thus a substantive starting point of proceduraljustice. Arguments for a basic structureare based on a moral right to justificationin which individuals themselves have real politicaland social opportunities to determine the institutions of this structurein a reciprocal-general, autonomous manner. Fundamental justice assures all citizens aneffective status ‘as equals’, as citizens with opportunities to participate andwield influence. Fundamental justice is violated when primary justification power is not securedfor all equally in the most important institutions.
On this basis itbecomes possible to strive for a differentiated, justifiedbasic structure, i.e. full justice. Democratic procedures mustdetermine which goods are to be allocated to whom by whom on what scale and forwhat reasons. Whereas fundamental justicemust be laid down in a recursive and discursivemanner by reference to the necessary conditions of fair justificationopportunities, other substantive considerations, and certainly alsosocial-relative considerations (in Michael Walzer’s sense), also enter into considerationsof full justice.[61]For example, how goods, such as health, work, leisure, etc., should bedistributed must on this approach always be determined first in the light of thefunctional requirements of fundamental justice,and then, in addition, with a view to the corresponding goods and the reasonsthat favour one or the other distributive scheme (which are also subject tochange). As long asfundamental justice pertains, such discourses will not fall prey toillegitimate inequalities of power. Once again it becomes apparent why the first question of justice is the question of power.

11. What, then, is the ultimate difference between the two pictures of justicethat I have differentiated? Perhaps it resides in twodifferent moral ideas of human beings, as beings who should not lackcertain goods that are necessary for a ‘good’ life or one ‘befitting a humanbeing’, on the one hand, and as beings whose dignity consists in not being subject to domination, on the other. Both are importantideas, and any comprehensive moral theoryhas to include them properly. But on my understanding, the second idea iscentral for the grammar of justice.

Translatedby Ciaran Cronin



[1] Otto R. Kissel, Die Justitia: Reflexionen über ein Symbolund seine Darstellung in der bildenden Kunst (München: Beck, 1984); DennisE. Curtis and Judith Resnik, ‘Images of Justice,’ Yale Law Journal 96 (1987): 1727-72.

[2] Wittgenstein, Philosophical Investigations, trans. G.E. M. Anscombe (Oxford: Basil Blackwell, 1968), p. 48, § 115; on this, see Pitkin, Wittgenstein and Justice (Berkeley, CA: University of California Press, 1972), pp. 91f., 287ff. An interesting application of theidea of ‘being held captive by an aspect’ can be found in Owen, ‘Criticism andCaptivity: On Genealogy and Critical Theory’, European Journal of Philosophy 10 (2002): 216-30.

[3] Wittgenstein, PhilosophicalInvestigations, p. 194.

[4] ‘A main cause of philosophicaldisease – a one-sided diet: one nourishes one’s thinking with only one kind of example.’Wittgenstein, Philosophical Investigations, p. 155, § 593.

[5] In a telling phrase of G. A. Cohen, ‘Afterword to Chapters One andTwo’, in his On the Currency ofEgalitarian Justice and Other Essays in Political Philosophy (Princetonrinceton University Press, 2011), p. 61.

[6] For the first two points, see esp. Iris Young, Justice and the Politics of Difference (Princeton: Princeton University Press,1990), and my ‘Radical Justice: On Iris Marion Young's Critique of the “DistributiveParadigm”’, Constellations 14 (2007):260-65. Iris Young’s decision to call the criticized paradigm ‘distributive’often leads to the misunderstanding that she was concerned with ‘political’rather than ‘social’ or distributive justice, which is not the case.

[7] Here a whole series of cases would have to be distinguished: directparticipation in or (joint) causation of injustice; indirect participation ininjustice by profiting from it without oneself actively contributing torelations of exploitation; and the (‘natural’) duty to put an end to unjustrelations, even if one does not benefit from them but possesses the means toovercome them.

[8] See my The Right to Justification. Elements of a Constructivist Theory ofJustice, trans. J. Flynn (New York: Columbia University Press, 2012), Ch.11.

[9] Immanuel Kant, TheMetaphysics of Morals, trans. M. Gregor (Cambridge: Cambridge UniversityPress, 1996), p. 203.

[10] Derek Parfit’s distinction between a ‘telic’ and a ‘deontic’egalitarian view captures important aspects of these different ways of thinkingabout justice, and it is interesting to note that – without commentingexplicitly on this – he uses the term justice only in connection with thedeontic view. See his ‘Equality or Priority?’, in Matthew Clayton and AndrewWilliams (eds), The Ideal of Equality(Houndsmill: Palgrave, 2002), p. 90.

[11] See also Rawls’s definition in A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999), p.5.

[12] Without being able to go into details here, I concur with thecritiques of ‘luck egalitarianism’ by Elisabeth Anderson, ‘What is the Point ofEquality?’, Ethics 109 (1999):287-337, and Samuel Scheffler, ‘What is Egalitarianism?’, in his Equality and Tradition. Questions of Valuein Moral and Political Theory (Oxford: Oxford University Press, 2010), Ch.7. As both of them show, luck egalitarianism is a cousin of libertarianism in thatit accepts the results of free choice (or ‘option luck’) as just, while ‘victims’of ‘misfortune’ are seen as (passive and needy) recipients of compensation. Ido not think, however, that the major difference between these views is to belocated in the concept of equality; rather, it stems from two very differentways of thinking about justice.

[13] I explain the difference between such a discourse-theoreticalunderstanding of domination and a neo-republican one based on freedom of choicein my ‘A Kantian Republican Conception of Justice as Non-Domination’, inAndreas Niederberger and Philipp Schink (eds), Republican Democracy (Edinburgh: Edinburgh University Press,forthcoming).

[14] I explain this more fully in Forst, The Right to Justification.

[15] On this, see Hanna FenichelPitkin’s critique of Plato’s apolitical notion of justice in Wittgenstein and Justice, p. 306: ‘A distribution imposed by fiat from above, on creatureswith no claim of their own, programmed to accept as their own what the systemassigns, cannot really illustrate the problems of justice but only avoid them.’

[16] On the notion of dignity, see my ‘The Grounds ofCritique. On the Concept of Human Dignity in Social Orders of Justification’,in Philosophy and Social Criticism 37(2011): 965-76.

[17] See, especially, Gerald Cohen, ‘Equality of What? On Welfare,Goods, and Capabilities,’ in Martha Nussbaum und Amartya Sen (eds), TheQuality of Life (Oxford: Oxford University Press, 1993), pp. 9-29; Ronald Dworkin, Sovereign Virtue. The Theory and Practice ofEquality (Cambridge, Mass.: Harvard University Press, 2000), part I; Harry Brighouse and Ingrid Robeyns (eds), Measuring Justice. Primary Goods and Capabilities (Cambridge:Cambridge University Press, 2010).

[18] See, for example, Ernst Tugendhat, Vorlesungen über Ethik(Frankfurt am Main: Suhrkamp, 1993), pp. 373f.; Wilfried Hinsch, Gerechtfertigte Ungleichheiten (Berlin: de Gruyter, 2002), pp. 169f.; StefanGosepath, Gleiche Gerechtigkeit (Frankfurt am Main: Suhrkamp, 2004), pp.250ff. The cake example, though without the mother, can also be found in IsaiahBerlin, ‘Equality’, in Concepts and Categories, H. Hardy (ed.)(Harmondsworth: Penguin, 1981), p. 84. See also Rawls in A Theory of Justice, rev. ed., p. 74.

[19] For a paradigmatic expression, see Richard Arneson, ‘Luck andEquality’, Proceedings of theAristotelian Society, suppl. vol. (2001): 73-90, and ‘Luck Egalitarianism:An Interpretation and Defense’, PhilosophicalTopics 32 (2004): 1-20.

[20] Tugendhat, Vorlesungen, p. 379; Gosepath, GleicheGerechtigkeit, p. 90.

[21] Iris Young, Justice and the Politics of Difference; Jürgen Habermas, Between Facts and Norms (Cambridge,Mass.: MIT Press, 1996). On the importance of the issue of power for questionsof justice see also Ian Shapiro, DemocraticJustice (New Haven: Yale UP, 1999). – The fact that no general ‘good’ ofpower exists does not mean that the resources necessary to generate power cannotbe the object of distributions. I try to show that power should be situated inthe space of justifications in ‘Noumenal Power’ (MS.).

[22] Harry Frankfurt, ‘Equality as a Moral Ideal’, in The Importanceof What we Care About (Cambridge: Cambridge University Press, 1988), pp.143-58, and ‘Equality and Respect,’ in Necessity, Volition, and Love(Cambridge: Cambridge University Press, 1999), pp. 146-54.

[23] Thus also Joseph Raz, The Morality of Freedom, (Oxford:Clarendon Press, 1988), Ch. 9.

[24] Roger Crisp, ‘Equality, Priority, and Compassion,’ Ethics 113 (2003): 745-63.

[25] Angelika Krebs, ‘Einleitung: Die neue Egalitarismuskritik imÜberblick’, in Krebs (ed.), Gleichheitoder Gerechtigkeit (Frankfurt am Main: Suhrkamp, 2000), pp. 17f.

[26] Martha Nussbaum, Frontiers of Justice (Cambridge, Mass.:Harvard University Press, 2006), p. 74.

[27] Rawls, Theory of Justice, pp. 74f.

[28] Nussbaum, Frontiers, p. 82.

[29] Ibid., p. 87.

[30] The meaning of ‘cooperation’ in this context should not beunderstood in such a way that it prescribes certain stereotypical oreconomistic ideals of the ability to cooperate and excludes persons who, forexample, are not yet or are no longer able to participate in the ‘normal’labour market. What is meant is a form of social cooperation in a wider senseof sharing a social and political order.
Martha Nussbaum, Frontiers, p. 121, correctly stressesthe need for such a broad concept of cooperation.
In contrast to her,however, I do not think that this extension is a matter of benevolence (ibid.,p. 122) because the claim to non-domination also holds for those who are deniedthe opportunity of full social membership and participation within a basicstructure due to a disability – a participation which should also be defined inreciprocal and general terms in the light of their abilities.
The terms ofcorporation must be determined in a discursive manner. A community ofjustification is not a community of ‘mutual advantage’ in the narrow sense.

[31] See my discussion of transnational contexts of justice in The Right to Justification, Part III.

[32] Amartya Sen, The Idea ofJustice (London: Allen Lane, 2009), pp. 7, 10. I cannot discuss here theissue of whether Sen correctly interprets Rawls’s theory as a model of ‘transcendentalinstitutionalism’. Briefly, I do not see Rawls as focusing exclusively oninstitutions rather than persons and their lives, and, since Rawls leaves opensuch basic institutional questions as whether the well-ordered society has awritten constitution or whether there will be a private right of ownership ofmeans of production, I believe one should instead speak of ‘institutionalagnosticism’ in Rawls.

[33] See especially his critique of Rawls, as developed in Amartya Sen, Inequality Reexamined (Cambridge, Mass.:Harvard UP, 1992), pp. 79-85.

[34] Sen, The Idea of Justice,p. 23.

[35] Ibid., pp. 205, 271.

[36] Ibid., pp. 372ff.

[37] Ibid., pp. 12f., 201, 396f.

[38] Ibid., p. 2.

[39] Ibid., p. 205.

[40] Ibid., p. 299.

[41] Ibid., p. 22. See also his ‘Consequential Evaluation and PracticalReason,’ Journal of Philosophy 97:9(2000): 477-502.

[42] Sen, The Idea of Justice,p. 295.

[43] This is reflected in Sen’s stress on democracy as the basicinstitution of political justice – an argument that is not used, however, asthe basis for a relational and structural, higher-order conception ofdemocratic justice (which I will elaborate on below).

[44] In section 11, I will come back to the question of capabilities anda possible place for them within the relational picture of justice.

[45] Nozick, Anarchy, State, and Utopia New York: Basic, 1974), pp. 149 ff. Young,Justice and the Politics of Difference,p. 28, is in agreement with Nozick in criticising end-state theories (to whichin her view the Rawlsian belongs).

[46]
Pogge, ‘TheIncoherence Between Rawls’s Theories of Justice’, Fordham Law Review 72, 2004, p. 1739.

[47] Rawls, A Theory of Justice, §40.

[48] Rawls, Political Liberalism, p. 98.

[49] Rawls, A Theory of Justice, p. 14.

[50] See also Scheffler, ‘What is Egalitarianism?’, pp. 195f.

[51] Rawls, A Theory of Justice, pp. 458ff. On the notion of cooperation, see fn.XX above.

[52] Rawls, Justice As Fairness: A Restatement, p. 50.

[53] Ibid., p. 139.

[54] Having this right does not depend on a particular capacity toexercise it; it is a right of persons in a deontological sense. Acquiring themeans to use this right effectively, however, is a matter of justice.

[55] See Forst, Justification andCritique (Cambridge: Polity, forthcoming).

[56] See Forst, The Right toJustification, Part I.

[57] For a more detailed discussion, see Forst, Contexts of Justice and TheRight to Justification.

[58] Here the ‘capabilities’ approachhas a justification, though one associated with the task of constructingfundamental justice.

[59] Rawls, A Theory of Justice, p.131.

[60] Here we must be alert to thefact that the group of the ‘worst off’ can change according to which good is tobe allocated. The unemployed, single parents, the elderly, the sick, or ethnicminorities, to mention just a few, could have priority in a given instance andcombinations of these characteristics, in particular, aggravate the problem(especially in the light of the history of gender relations).

[61] Michael Walzer, Spheres of Justice (New York: BasicBooks, 1983). In later writings, Walzer has modified his approach in such a waythat the principle of ‘democratic citizenship’ plays the leading role in allspheres. See his ‘Response’ in David Miller and Michael Walzer (eds.), Pluralism, Justice, and Equality(Oxford: Oxford University Press, 1995), especially pp. 286ff.


 楼主| 发表于 5/19/2017 16:10:12 | 显示全部楼层
为正义而战而牺牲却不明白正义为何物者不乏其人,坦率地说,我自已直至被中共暴政非法剥夺执业权,且为正义和自由奉献了几乎所有的一切,对什么是正义仅有模糊不清的认识。甚至迄今仍不敢自称业已完全明白到底什么是正义?!
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