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Law Notes Jurisprudence Notes

Rawls A Theory Of Justice Revision Notes

Updated Rawls A Theory Of Justice Revision 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 Introduction Mid 20th century many philosophers fell into "subjective" trap: differing preferences that do not lie open to rational scrutiny( and confuse that with tolerance, but tolerance allows for you to be wrong, subjectivists don't) "Invoking justice is equivalent to banging the table to reinforce one's demands: adds nothing to the content of one's assertions, simply indicates the emotional intensity with which they are put forward" - Ross 1974 Problem in liberal political thought: if people hold quite diverse moral and philosophical views, how can they come to agree upon framework of rights or laws? Will not any such framework necessarily privilege some moral viewpoints at expense of others? Simmonds points out that these people often combined this subjectivism trap with the idea that a disengaged conceptual analysis of moral ideas was possible. A good illustration is Hart's discussion of justice: Concept of Law Chap.8. Here Hart distinguishes the formal structure of the notion of justice (treat like cases alike) from its contested substantive content (the criteria of likeness). This enables him to point out a conceptual connection between justice and rule-following. In turning to One option: Utilitarianism. It defines welfare as preference-attainment and as such can accommodate different competing moral views. That is a strength. Rawls thinks it is possible for philosophy to go further, by arguing for substantive standards of justice. "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 Enter John Rawls Rawls fundamentally rejects utilitarianism, and thinks you can address the problem of moral diversity in different way: reasoned argument is possible! Rawls objective = arrive at systematic theory of justice for the "basic structure" of a society. Such a theory could serve as public conception of justice. In A Theory of Justice (1971) Rawls seeks to show that his objective can be reached if we set on one side or diverse opinions of what counts as a good or flourishing life. So the way Rawls gets around problem of diversity is by distinguishing two realms of ethical thought: * one concerning the goals and ideals "conceptions of good" that we should seek; and * the framework of justice and rights within which such "conceptions of good" are to be chosen from. Thus: Rawls seems to suggest that most important is the framework of justice After Publication of ATJ, modified position. Said that we should not only set aside diverse conceptions og a good life, but our must fundamental moral, philosophical and religious views because theory is not just about moral autonomy but self standing without any philosophical claim. Difficult to perform exposition because theory is complex and shifty, but some themes emerge. Reflective Equilibrium Problem: Getting theory about justice in a society characterized by diverse moral outlooks? One solution: start from uncontentious premises that rational people must accept (Gewirth attempted this in 1978, but unclear if he succeeded). Rawls does NOT use this technique. He seeks to exhibit the mutual supportiveness of our existing moral convictions. All reflective individuals will have developed "a sense of justice" and learnt how to frame reasons for that, but not the DEEPER relationships (gives e.g of grammar, we know it but don't understand deeper relationship). That is Rawl's goal, finding those. In so doing, we will necessarily have to adjust our initial convictions, move back and forwards and when we finally have attained a situation where our considered convictions are subsumable under an orderly set of principles that we are prepared to endorse, we have attained "reflective equilibrium". The test is one of coherence and mutual supportiveness. This is not "rubber stamping" existing convictions because will necessarily need to modify some of them. Rawls thinks that this method of reflective equilibrium in fact is the method that underpinned most of the work that makes up tradition of moral philosophy, even going back to Artisotle (This method goes back to aristotle, who called it "saving the appearances".(p. 45 ATJ) Problem: Rawls accepts that a high degree of moral diversity is characteristic of modern society and will always be found within liberal society, and reasonable people can disagree. And Rawls intends his theory to reveal public conception of justice even given this degree of moral diversity. But how can this be, when Rawls' argument must of necessity rely upon our EXISTING moral beliefs? Rawls perceives this problem. In ATJ the main idea seems to be that suitably weak and widely shared premise can lead us towards more substantial conclusions IF combined into sufficiently enlightening structure and later adds that these premises are to be gotten from public culture of liberal democracy and capable of being supported by people of diverse moral views. Rawls core argument hinges upon his most famous device: the "original position" and the idea of choice from behind a "veil of ignorance". Justice as Fairness can be understood as saying that the two principles would be chosen in the OP in Preference to other traditional conceptions of justice, e.g., of utility and perfection, and that these principles give better match with our considered judgment!! (O.P as a tool to help attaining reflective equilibrium)

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