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Law Notes Jurisprudence Notes

Rawls A Theory Of Justice Notes

Updated Rawls A Theory Of Justice Notes

Jurisprudence Notes


Approximately 417 pages

Jurisprudence notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB core jurisprudence readings from Hart to Dworkin to Raz to Mill and Kelsen and much much more. These notes are perfect for anyone studying either law or the philosophy of law, no matter where they are based.

These notes are formed from readings of the primary texts (i.e. the original books) and academic papers, then condensed down as much as possible. Everything is split up by topic and y...

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John Rawls, A THEORY OF JUSTICE CHAPTER I. JUSTICE AS FAIRNESS "My guiding aim is to work out a theory of justice that is a viable alternative to doctrines (of utility and intuitionist) that have for so long dominated our philosophical tradition. " p.1 1. THE ROLE OF JUSTICE * * * * * * Rawls rejects utilitarianism as unjust: * Justice does not allow sacrifices imposed on a few to be outweighed by the larger sum of advantages enjoyed by the many. Injustice is allowed only to prevent a greater injustice. "A set of principles is required ro choosing among the various social arrangements which determine this division of advantages and for underwriting an agreement on the proper distributive shares. A good society is * 1) everyone accepts and knows that others accept same principles of justice. * 2) the basic social institutions generally satisfy and are generally known to satisfy these principles. * And this public conception of justice = fundamental charter of a well ordered human association. Existing societies are seldom so well ordered, because what is just and unjust itself is in dispute. But everyone agrees need for a characteristic set of principles for assigning basic rights and duties. Some measure of agreement in conceptions of justice is not only prerequisite for viable human community, like (1) plans of individuals (2) that lead to achievement of social ends and (3) stable. But all three of these things need certain agreement of justice. * THUS: one conception of justice may be preferable when its broader consequences are more desirable. 2. THE SUBJECT OF JUSTICE * * * * * * * * Many things can be just * judgments, imputations, decisions, etc. But we deal here with social justice. We look at basic structure of society The justice of a social scheme depends essentially on how fundamental rights and duties are assigned and on the economic opportunities and social conditions in the various sectors of society. What will I do? * "I shall formulate a reasonable conception of justice for the basic structure of society conceived for the time being as a closed system isolated from other societies." Also, I will not deal with what to do when we face injustice, like theory of punishment etc. Admits that concept of basic structure is bit vague. But point for now is that conception of justice for basic structure is worth having for its one sake. Justice is but one part of a social ideal, although most important one. The concept of justice Rawls wants to be defined: by role of its principles in assigning rights and duties and in defining the appropriate division of social advantages. No conflict with traditional Aristotelian notion because his definition of justice is framed to apply to actions, but Rawls' to social institutions! 3. THE MAIN IDEA OF THE THEORY OF JUSTICE * * * * * * * * Justice as fairness: the associative principles that free and ratoinal persons concerned with their own interest would make behind a veil of ignorance. Men must decide what is just and unjust, once and for all. Describes the veil of ignorance on p12 The original position is the appropriate status quo, and thus the fundamental agreements reached in it are fair. So the steps are * 1. Choose conception of justice * 2. Choose constitutions and legislature to enact laws Feature of justice as fairness: people in original position are mutually disinterested. So, which conception of justice will be chosen? * Not utilitarianism because inconsistent with idea of reciprocity implicit in notion of a well ordered society. * They would choose two different principles: # 1. Equality in assignment of basic rights and duties # 2. Social/economic inequalities are just only if thy result in compensation benefits of everyone, esp. the least advantaged. * These principles make sense because leave aside those aspects of the social world that seem arbitrary from a moral point of view. Justice as fairness is e.g. of what I called contract theory (principles accepted in a well defined initial situation). Its just a good way of understanding it, not a complete contract theory. 4. THE ORIGINAL POSITION AND JUSTIFICATION * * * * * * * * * Agreements made in OP = fair = justice as fairness. But how are we to decide what is the most favored interpretation? R assumes that there is a broad measure of agreement that principles of justice should be chosen under certain conditions. One argues from widely accepted but weak premises to more specific and contentious. Another argument for justifying the original position - seeing if the principles chosen match our considered convictions of justice or extend them in a notable way --- AND by going back and forth, sometimes altering the conditions of the contractual circumstances and sometimes withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situations that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This I call reflective equilibrium. Why should we bother with OP if it is purely hypothetical and will never actually happen? Answer: conditions embodied in the prescription of the OP are ones that we do in fact accept Also, we need conception that enable us to envision our objective from afar: the intuitive notion of the OP is to do this for us. 5. CLASSICAL UTILITARINISM * When Society is ordered so as to achieve greatest net good for sum over all individuals

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