Procedure and Substance in Accounts of Justice

[摘要] In this thesis I present a philosophical argument that defends a particular approach to the legitimation of substantive principles of justice in the context of a modern society. Philosophy must seek to justify a procedure of legitimation that gives us a conception of an impartial point of view. This procedure could then act as a critical test of substantive claims about justice. However philosophy must not actually carry this legitimacy test out itself This task must be left to all those who are to be affected by the principles in question. The first of three chapters is a critical analysis of the procedure of impartiality that is outlined by John Rawls. I will argue that a consideration of the views of Rawls's communitarian, post-structuralist and feminist critics reveals that his procedure is flawed in a number of important respects. The most important flaw is the fact that Rawls's procedure represents a monological point of view where all differences between represented parties are eliminated prior to a consideration of substantive principles of justice. In the second chapter, Michael Walzer's attempt to theorise justice without recourse to a philosophical conception of an impartial procedure will be examined. While Walzer's approach has certain advantages over Rawls's, his failure to justify an impartial point of view means that his interpretive account of justice is dangerously partial. In the third chapter I will present a theory of justice that overcomes the weaknesses of both Rawls's monological proceduralism and Walzer's contextualist anti-proceduralism. Jurgen Habermas presents us with a dialogical conception of impartiality that can retain Walzer's context sensitivity without losing the critical edge that a philosophical conception of an impartial point of view brings to a legitimacy test for substantive principles of justice. Furthermore, Habermas clearly separates the philosophical task of clarifying an impartial point of view from the democratic task of legitimating principles of justice. I will focus my attention on the dialogical conception of impartiality that is at the core of Habermas's discourse ethics so as to show that his work is the best available theoretical guide for the necessarily procedural task we face, that of legitimating substantive principles of justice in a modern context.

[发布机构] University:University of Glasgow

[关键词] Law, Philosophy