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Fr. 717

May 27, 2016

In choosing one conception of justice over another, we are confronted with a plurality of possible instantiations of our principles and between which certain may embody our considered principles equally well. When confronted with the choice between such conceptions, it becomes necessary to elaborate a set of criteria for the selection such that we prefer one over the others. If we so need a set of criteria by which to justify the choice of one conception over others, we likewise have need of a means of justifying the choice of certain criteria. Otherwise, our selection remains unfounded throughout.

In short, we are in search of an ideal justification of both principles and a conception of justice as regards the basic structure of society. We shall begin by examining how Rawls proposes to meet the stringent conditions posed by the goal of ideal justification. The thinker’s strategy takes its starting point in the determination to set aside any and all contingencies. Insofar as contingencies alter the conditions of justification and, in an ideal justification, we naturally seek a justification which holds for all situations independent of the conditions of justification, it follows, for Rawls, that the criteria for selection can include no contingent elements which might thusly alter our choice across different selections.

On this count, Rawls collects in a hypothetical situation the five criteria which ensure a selection free from contingency. Any non-contingent selection will set out from a position maximizing:

1. generality (understood as omitting references to a particular)

2. universality (understood as extending to all members of a class)

3. publicity (understood as being publicly available)

4. ordering (understood as imposing a lexical priority)

5. finality (understood as definitiveness)

The conjunction of these maximized criteria issue in a non-contingent selection on the selector’s part; this conjunction is captured by the depiction of the original position in A Theory of Justice. Moreover, once the criteria for selection eliminate contingency, their application to conceptions of justice, by extension, precludes contingency in the instantiation of justice within the conception selected. Therefrom and in response to the problem of justification emerges a constrained model for choosing a given conception of justice for the institutions of society. So constrained, the process of selection in the original position yields a basic structure of society and institutions which is always and unfailingly the same. And, in conformity with the notion of pure procedural justice, the resulting basic structure of society is always and unfailingly just.

Like Rawls, Stout seeks to set out an ideal justification as to the choice of a conception of justice and the criteria whereby one makes such a choice. Yet the similarities end there as Stout holds that contingencies, even kept to a minimum, necessarily enter the original position, for example, under the form of one’s language of deliberation. This owes to Stout’s historicism, as put forward in The Flight from Authority, whereon the attempt to transcend contingent considerations in thought and justification leads to incoherence, frustration and failure. In a word, this represents an about-face from Rawls’ position.

The need to take stock of contingencies in a position of ideal justification takes shape in the need to make explicit the implicits of reasons, criteria and principles. Though those reasons and criteria need not be general, universal, public, etc. in shape and scope, they may take on such a form. The essential, for Stout, proves that parties to justification and selection of a conception of justice make manifest their implicits in such a way that all parties are capable of using the implicits of others as premises in the deliberation, either to support or to contest. Accordingly, this issues in an original situation largely unconstrained which yields a basic structure and institutions defeasible by nature and capable of alteration in accordance with a pragmatic historicism.

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