Monday, 30 May 2011

Open Access, Context and Control

I've been assuming for sometime that most thinking people in philosophy and academia support the general principles of Open Access and the proliferation of digital publishing so I was startled to note this recent posting that suggests some specific reservations concerning these trends. Before examining and replying to the contentions of this piece, it is worth pointing out for the sake of context of the argument that it is written as a reply to this piece which had argued precisely for Open Access and digital publishing as a general model.

Open Access is understood well by both the previous contributors to this debate as a form of publishing that does not involve fire-walls and which enables free transfer of arguments between people including the distribution of pieces in a stand-alone fashion. The objection argues that the point of philosophy can, in a general shorthand, be understood to be a concern with "truth" and this is introduced in a way that is not intended to be question-begging between different philosophical positions. The basic point in asserting this is that each philosopher, whatever their other general positions, is assumed to take their own arguments and positions sufficiently seriously as to want to convince others of them and, in this limited sense, to be convinced of their "truth". 

Now, after making this point, the argument turns somewhat transcendental as the next move, at least as I understand it, involves a statement concerning the conditions of possibility of assessing the "truth" of the statements of a philosophical utterance and this condition involves being able to "control" the context in which such utterances are made. With traditional print media, so the argument goes, there is a basic way to do this as the argument appears in, for example, a standard academic journal and this journal provides the context for comprehension of the utterance in question. By contrast, with Open Access material there is no such "control" of the context of utterance and hence no way of ensuring respect of the truth-conditions of the utterance in question. Hence there are philosophical grounds for being concerned that such Open Access models should not spread.

Now there is lots to be said in response to this intriguing argument. In general, prior to going into detail, I want to suggest that there is a sense in which the argument is right and another in which it is wrong. Further, the sense in which it is right is different from what might be thought by the one who has stated the argument.

So let's first assess the basis on which the argument might be thought to be "right" and how this basis is different from what might be expected. It is clearly correct to say that the author of an Open Access piece has no way of assessing the way in which their piece will be seen, no "control", as the argument has it, over the "context" of the piece. There are mitigations of this in the sense that, if, for example, an article appears in Kant Studies Online that someone who downloads it is aware of the context of the appearance of the article in an academic journal and the standards expected of such. Further, the pages of the article all include the reference to the place of publication and this shows clearly the general "context" of the publication of the piece. These mitigations may be thought to be insufficient. But now consider the contrast with the traditional place of publication. If your article appears in a print journal or something that has a pay-wall then it is true that access to it is more restricted than in an Open Access situation. But is it true that the author has in this situation "more control" of the context of its means of publication? In fact this is so far from true that the argument advanced fails to distinguish in a meaningful way between traditional publication and Open Access publication.

Let me explain. If you appear in a traditional print journal then what happens is two things that take the "context" quite out of your control as an author. Firstly, assuming this is not a "special" issue devoted to a specific theme or question, the fact is that you have no "control" over the surrounding articles which in fact give the "context" of publication. These surrounding articles could, and often do, display characteristics that are quite different from those in one's own article arguing for positions one might well take to be quite disreputable and doing so in ways that you cannot assume to be standardly acceptable (this happens with even the "best" journals). So in this first important sense the "context" belongs not under the control of the author of the individual piece but rather under that of the editor of the journal. All this applies, mutatis mutandis, with pieces that appear in edited book collections also.

The second way in which the author manifestly lacks "control" of the "context" of the utterance in question is that the utterance can very easily be removed from this "context". It is true that such removal is not quite as easy as with an Open Access journal but it can still pretty easily take place. Articles can be downloaded from print journals that have on-line access and simply studied alone just as happens with Open Access articles. Similarly print journals can be photocopied and the articles circulated in contexts that are quite distinct from that of the original journal and used in ways that are far from under the "control" of the original author. So true is this that the basic conditions of these articles (and it was these conditions that were taken to be part of the assessment of the "truth" value of the utterances in question) cannot be meaningfully distinguished from the conditions of Open Access articles.

So the sense in which it is true to write that Open Access articles are not under the "control" of the author of them is just as applicable to the production of articles in traditional formats. And this was not the point of the original argument which suggests that the original argument has clearly missed something crucial.

What the original argument missed were the conditions of the "control" of "context" that exist with regard to traditional media. Just listing these conditions is enough to give one pause when confronted with suggestions that authors have, in some meaningful sense, "control" of this context. Take a traditional journal. An author submits their material to it freely and it is then passed by the editor, also freely, to referees who further freely give their time to assess the quality of the article. The author has, it has to be added, little by way of guidance generally in terms of how fairly his article will be treated in this process and is frequently requested to make changes of large scope to have any chance of publication, changes which could meaningfully alter his argument. However, the next point is that the result of all this free labour, assuming that it ends with the article's acceptance (something very unlikely in traditional print media) with publication in a journal that is produced under conditions of artificial scarcity that have blocked the publication of many other articles of equal or superior status to those published on grounds that are scarcely intellectually defensible.

Let me expand on these points to draw out what I mean. Artificial scarcity afflicts traditional print media as there can only be so many issues in a year and therefore only so many pieces can appear in a journal. This leads to situations where pieces can take a great deal of time to appear, often, in fact, an accepted article will appear months and even years after it was initially written. By this point the original author will, most likely, have changed their views in quite important ways and the debate to which they may have seen themselves contributing will also have altered in ways not foreseeable when the original piece was produced. So, the "context" of the reception of the article is decidedly not under the control of the author and one of the reasons why it is not is because of the scarcity of published articles in conditions that are not such as to foster academic judgment as the main criteria.

Traditional print journals do not and could not publish everything of quality submitted to them. Further, their publication cycles encourage delay in publication of a sort that is not best conducive to the reception of arguments produced. Both of these points show a lack of "control" of the author with regard to such means of production.

Returning also to the conditions of academic labour here: the journal is run at cost so that whilst all the work of the academics here (editor, readers, author) is donated for nothing, the journal subsequently sells the content that is accepted and artificially produces barriers to its dissemination. These artificial barriers frequently prevent articles reaching those who might well be best placed to respond most usefully and interestingly to the articles published. This is another way in which the traditional means of publication is far from giving "control" of "context" to the author.

By contrast an Open Access journal, by virtue of its openness, ensures that any reader who learns of its existence can read its material and it has no conditions of artificial scarcity affecting its publication assuming it is published digitally (it still does if print only). These conditions in fact give some important "control" to the author. Given that digital Open Access media can also move to publication quickly they also ensure a better environment for the author's argument in the sense that the author is still close to the material and better able, by virtue of this, to defend its contentions. They further open argument up to quicker developments whilst ensuring that only academic judgments of quality (and not questions of the space of the print) decide what gets published. In all these respects it turns out that the publication of Open Access digital journals in fact has serious advantages in terms of "control" of certain kinds of "context" for the author and suggests reasons why the original argument was false.

In conclusion the way in which the argument was true failed to distinguish significantly between traditional means of publication and those of Open Access digital media. The ways in which the argument was false showed, by contrast, insufficient reflection on the conditions of traditional media which are very far from giving authors "control of context" of the reception of their articles.

Friday, 27 May 2011

The Arrest of Mladic

General Ratko Mladić during UN-mediated talks ...Image via Wikipedia
The announced arrest of Ratko Mladic cannot go without comment. Mladic was the general who led the Serb forces that stormed the so-called "safe haven" of Srebnica in 1995 that led to the massacre of thousands of men and boys who had the misfortune to live there and not be ethnic Serbs. The international possibility of this massacre taking place was grounded in the application to the conflict in Bosnia of "realpolitik" analysis that claimed the forces in possession of territory should be left in control of it and on a ban on the Bosnian government procuring arms internationally. 

Since Bosnian Croats and Bosnian Serbs could turn to Croatia and Serbia respectively for supply of arms the "embargo" penalised the only multi-ethnic actor in the war and helped to ensure the occurrence of the Srebnica massacre. Responsible here in the UK for this grotesque policy were Foreign Secretary Douglas Hurd, Defence Secretary Malcolm Rifkind and Dr David Owen who was held up as an international mediator and became chairman of the "Conference for the Former Yugoslavia". Owen effectively acted throughout as a stooge for the Bosnian Serbs and "trusted" Slobodan Milosevic, the President of Serbia. For a general and thorough demolition of Owen's own self-serving memoir on the subject see this report. The policies of Douglas Hurd as Foreign Secretary dove-tailed with Owen's reflexively pro-Serb position as is brought out well in this review of Hurd's memoirs. Unlike the defensive Owen and Hurd, neither of whom has admitted the error of their ways or the result of the policies they urged, Malcolm Rifkind has since stated that the arms embargo on the Bosnian government was a major error and he is at least to be commended for this, an expression of regret that has certainly influenced subsequent Western policy in Libya as Rifkind has rightly intended.

The appeasement practiced by the British government in the 1990s towards the Serbs was oddly echoed by some on the left at the time who, as usual, fretted about Western intervention anywhere and some of whom preferred to attack Germany (!) rather than Serbia. Such people have been discussed at length elsewhere on this blog and refuted in detail by David Campbell on his excellent site. The striking aspect of this peculiar convergence between the Tory "realists" and apparent leftists does strike one today, as it did then, as serious evidence of the need for a politics that, in true Kantian fashion, focuses on the cosmopolitan need for attention to human rights rather than being based on either narrow ideas of self-interest or reflexive attacks on any form of "Western intervention".

In the meantime it is certainly good to see that Mladic has followed Radovan Karadzic to the Hague and that the disastrous policies of Owen, Hurd and Rifkind are not being currently followed by Western governments.

Monday, 16 May 2011

The AHRC and the "Big Society" (III)

This is almost getting too silly for words. In the latest issue of the Times Higher Professor Rick Rylance has defended the use of the language of the "big society" in the delivery plan of the AHRC once again. It has to be said, however, that the kind of defence offered is such as almost to make further attack unnecessary. Firstly, the defence is that whilst the notion of the "big society" was once a slogan attached to a particular political party, it is now, apparently, a legitimate area of research for the humanities given that it has become public policy. The suggestion appears to be that when something that was party political in an election campaign is subsequently adopted in government it has ceased to be a party political matter. This is surely a new view of the relationship between parties, policies and research!

The second "point" in favour is that Deputy Prime Minister Nick Clegg apparently made a statement eliding the "big society" with a number of other words, including the word "liberalism" and this apparently shows for sure that the term "big society" has no specific party political content. The fact that Clegg could make such an astoundingly stupid comment does not licence Professor Rylance to retail it further. It remains a stupid comment, no matter how often repeated or by whom. The fact that the leader of one of the two parties in the Coalition (a party that did not previously tout the idea of the "big society") has now adopted the language of the other party in the Coalition hardly shows that the phrase in question has ceased to have political content.

Thirdly, Rylance claims that the phrase "big society" found its way into what he terms the "grey literature" which is, apparently, a place where advocacy and research literature get bound up together. Whatever the "grey literature" is it would appear to belong within the province of social science and not humanities so it is again unclear how this reference is supposed to produce an argument for the AHRC's research mission statement.

Finally, Rylance ends his piece by stating that adoption of the language of the government of the day does not imply support for their specific policies and it is a "caricature" to speak as though it does. The fact that there is a difference between the general language of the "big society" and specific proposals in support of it is true. However, it is also the case that the notion of the "big society" does indicate a particular attitude towards government and civil society and this attitude is not politically neutral. There could be research into why politicians adopt such phrases and into what is meant by focusing on them. That would be fair but to adopt the language itself as if it were neutral between approaches to social policy is hardly to manifest such neutrality, it speaks bias and Professor Rylance seems to wish the rest of us to think that it doesn't.

Monday, 9 May 2011

Rawls' Two Principles of Justice

The bulk of Chapter 2 of A Theory of Justice is taken up with discussion of Rawls' two principles of justice. The two principles are, however, refined over the course of the discussion that Rawls has of them. So, when they are first introduced in section 11 it is only in a provisional and tentative form, with a revision emerging of the second principle already in section 13 and the final version of the two principles not being given until section 46, which is in Chapter 5! It is also not until section 39, also in Chapter 5, that Rawls gives a fuller defence of the priority of the first principle over the second one. 

With all these provisos in place I intend in this posting to discuss the preliminary account of the two principles in sections 11-13, from the first tentative formulation to the revision of the second principle in the latter section. The first statement of the two principles in section 11 is as follows:

"First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.
Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all."

So the first principle specifies an equality of access to basic liberties and the second, more complicated principle, refers to two limitations on inequality, the first limitation concerning a form of recognition of prudential concerns and the second referring to openness of offices. Rawls immediately indicates, however, that the second principle is ambiguously formulated which is why it becomes necessary to determine the sense of the principle more carefully, leading to its reformulation in section 13.

The principles are principles of social justice and are meant to apply to the "basic structure" of society as indicated in  section 10. The formulation of the principles helps, however, to understand the nature of this "basic structure" somewhat more fully as the two principles show that this structure has distinguishable parts as some elements of it are concerned with liberties and others with inequalities. The basic liberties specified by the first principle are said to be given in a "list" and whilst some parts of this list are standard (freedom of speech and assembly for instance), others are rather more expansive and would take a lot more working out than is just given by listing them (such as freedom from "psychological oppression"). 

The second principle has caused much wider debate and controversy than the first despite the fact, as just indicated, that the first refers to a list of liberties that are far from all standard or clearly formulated. The second principle applies to distribution of income and wealth and to "the design of organizations that make use of differences in authority and responsibility". It is this reference to "differences in authority and responsibility" that is the first clue to how part of the second principle will subsequently be labelled the "difference principle".  The second part of the second principle indicating the openness of offices is also indicated by Rawls to be the means of application of the second principle suggesting that the division of the two parts of its formulation is due to the first part defining a general meaning or sense of the principle whilst the second part defines its application, a suggestion we will have to further test.

The principles are also given in a serial order with the suggestion that the first principle is prior to the second and hence that justifying the ordering of the principles will be Rawls' way of responding to intuitionist scepticism. The point of this ordering is to say that violation of the equal provision of liberties cannot be compensated for by means of greater social or economic advantages (a kind of riposte to the Leninist view that increases of equality make up for deprivation of freedoms). However, adding to questions about the understanding of the first principle is Rawls' point that it is possible for the basic liberties to conflict with each other and, due to this point, it turns out that none of the specific basic liberties is absolute. Nothing is said, however, about rules for priority in relation to such clashes of basic liberties. Further, other liberties which are generally recognised are not to be understood on Rawls' construal as "basic" and this includes freedom of contract, at least as understood by "the doctrine of laissez-faire". This restriction on liberties that indicates some are not "basic" requires further argument.

Rawls also suggests that the two principles are a special case of a "more general conception of justice" and this more general conception is specified as follows:

"All social values-liberty and opportunity, income and wealth, and the social bases of self-respect-are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage."

This "general" conception is still defined in social terms so is perhaps the general principle of social justice as far as Rawls is concerned and it is, noticeably, defined in egalitarian form. It still also contains the prudential reference that was noted above to be part of the second principle. The notion of injustice also emerges in a suitably general form once we have this formulation as indicative of the presence of inequalities that do not have general benefit. The vagueness of the formulation requires Rawls to begin the refinement of the position up to this point.

The beginning of this refinement is to introduce the notion of "primary goods" that are distributed by the "basic structure" of society and are indicated by Rawls to be "things that every rational man is presumed to want". Note the great generality of this description. However, as warned back in section 9, Rawls proceeds by simplifying assumptions and here the assumption is that there are "chief" primary goods (the primary "primary goods") and they are "rights, liberties, and opportunities, and income and wealth" although a promissory note is indicated that in the third part of the work self-respect will also emerge as having a central place.

The point about the "chief" primary goods is that they are social in character and distinct from such "natural" primary goods as health as the latter are not so directly under the control of the basic structure (although provision of means to ensure good health as an equally available primary good surely does relate to matters over which the "basic structure" has control). 

Having introduced the notion of social primary goods Rawls next asks us to imagine an initial arrangement where all these goods were equally distributed. The question in relation to this situation is whether there are means of ensuring that there are improvements for all that could be made upon it. Given the lexical priority of the two principles this could not involve violations of the first principle being accepted in return for improvements in general equality but there is nothing to prevent acceptance of some forms of inequality if they would render the liberties of the first principle more generally available in practice. 

Interestingly, Amartya Sen, in his recent book The Idea of Justice has objected to the priority given to the first principle on the basis of its alleged extremity but Rawls already indicates in section 11 that he understands that the initial response to the lexical priority of the first principle might take this form and he refers forward again to section 82, part of the very last chapter of the book (Chapter IX) where a reply is allegedly given to this type of objection.

Given that the two principles of justice are meant to apply to the "basic structure" they are institutional principles. So the basic liberties define "public rules" and the reference to "persons" is meant to indicate "representative persons". The description of "persons" in this way has particular importance in relation to the second principle as Rawls takes it to mean that it is possible (and, presumably, desirable) to "assign an expectation of well-being to representative individuals". This notion is one that evidently requires a lot more work, particularly given its general association with utilitarianism. However, the reference to "representative individuals" is also meant to rule out application of the principle to specific cases as might well be required by acts of charity (rather than justice). This is part of the limitation on the scope of intuition which tends to relate much more to individuals in a specifically particular rather than a representative sense.

The understanding of the second principle requires, however, much more deliberate attention and Rawls begins to provide this in section 12 when he addresses different interpretations of the second principle. The ambiguities he recognised in the formulation of the second principle lead him to consider possible interpretations of what could be meant by both the prudential reference of the second principle and by the notion of openness of offices. The notion of openness of offices is understood to be capable of being understood either as requiring that "careers are open to talents" or that there is "equality of fair opportunity". Similarly the prudential reference to "everyone's advantage" could produce either a principle of efficiency or a difference principle.

Rawls tabulates these possibilities so that a combination of the openness to offices principle understood as openness to talents with the principle of efficiency would produce a system of "natural liberty". By contrast, if the principle of careers open to talents was combined with the difference principle we would have a "natural aristocracy". By contrast, the principle of equality of fair opportunity, if combined with the principle of efficiency would give "liberal equality" and, if combined with the difference principle, would give "democratic equality".

The combination that Rawls prefers is that of equality of fair opportunity with the difference principle, this is the formulation of the second principle that he wants us to accept. However, whilst this is the view that he wants us to take, the full argument for this requires reference to the original position and this reference does not happen until Chapter 3. So, once again, the argument here for rejection of the other interpretations of the two parts of the second principle, is not fully given as yet. It is only if the parties to the original position have structural reasons for rejecting the other interpretations of it that Rawls has here given that the conception of democratic equality should be accepted.

All interpretations of the second principle looked at assume acceptance of the first principle and this is taken by Rawls to suggest a basic free market system is adopted in practice (though without decision being required concerning the ownership of the means of production). To assess both the systems of natural liberty and those of liberal equality it is necessary to have a sense of the principle of efficiency and Rawls explains this as Pareto optimality. The problem with this principle, as far as Rawls is concerned, is that there are many efficient arrangements and the problem is how to choose between them. To do so requires going beyond the criteria of efficiency itself. 

In the system of natural liberty the principle of efficiency is constrained by formal equality of opportunity so that all have the same legal access to all positions. But this system does not have any means of ensuring that there is any similarity, let alone equality, between parties and is thus vulnerable to natural and social contingencies as determinative of all outcomes and this is taken by Rawls to mean that outcomes are determined by factors that are morally arbitrary. This argument is part of the source of the "luck egalitarian" interpretation of Rawls. 

The notion of "liberal equality" is one that intends to correct the determination of outcomes by natural and social contingencies that is the  basic mechanism of rewards in the system of natural liberty. This is done by the invocation of the principle of fair equality of opportunity. It basically suggests that for offices to be truly open there must be an effort to ensure that there are equal life chances. Hence we get something like a meritocratic system as the meaning of liberal equality (which was described by Henry Sidgwick as "ideal equality"). However even though the liberal conception is preferable to that of natural liberty in aiming to eliminate social contingencies it does nothing to affect natural contingencies having great weight. One of the reasons why natural contingencies would continue to have weight is also revealing, namely, that the continued existence of the family in the liberal notion ensures the importance of such contingencies. This almost suggests a communist element in Rawls' view and is certainly a further source for the luck egalitarian understanding of A Theory of Justice.

Natural aristocracy is not given much space as a conception by Rawls as it involves only formal equality of opportunity though it is meant to limit the goods available to those best placed in relation to ideals of service. Both liberal equality and natural aristocracy are viewed by Rawls as unstable as they are dependent on natural contingencies which are bound to be problematic morally. 

Given these assessments Rawls' preference for the notion of democratic equality emerges as a default position. However, the account of it has to include a defence of the difference principle, a principle meant to make the principle of efficiency more determinate. This involves the argument concerning incentives that Gerry Cohen has subjected to various objections in a number of publications as here Rawls indicates that the basis of inequality has to include the sense that lesser equality is justified if more equality would make everyone worse off. This conflicts directly with the "luck egalitarian" reading of A Theory of Justice. Interestingly, in defending the difference principle as a corrective to the principle of efficiency, Rawls concedes that the difference principle is intended to be a "maximising principle" and is hence part of his alternative to the principle of utility. The result of the discussion in section 13 is a reformulation of the second principle as follows:

"Social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity."

Now the first part of the second principle has been understood as the difference principle and the second part as the principle of fair equality of opportunity. The difference principle's meaning is very carefully explained: "it applies primarily to the basic structure of society via representative individuals whose expectations are to be estimated by an index of primary goods". 

Sunday, 8 May 2011

Rawls and the Theory of Institutions

The second chapter of A Theory of Justice has a preliminary opening that operates as a kind of "preface" to the chapter and it is this preface that I want to post on today since the majority of the chapter is included in the sections of the book that the original preface to the whole work set out as central to it. Those sections (11-17) which make up the majority of the chapter concern the two principles of justice and much needs to be said about them. However, before those sections open Rawls includes first a general outline of the chapter, which is very short and then a section (10) in which there is a general account of two sorts of theory that relate to institutions as well as a brief discussion of the contrast between formal and substantive justice.

The general preface to Chapter 2 makes apparent that there are, on Rawls' view, two parts to the theory of justice. The first part concerns an interpretation of the initial situation (the original position) which will be the subject of Chapter 3 and the second part concerns an argument establishing which principles would be adopted in this situation. Oddly Rawls treats the latter before the former. This is odd since the full argument for adopting the principles evidently cannot be given prior to the discussion of the original position so the formulation of the principles of justice in this chapter must be preliminary and yet it is still thought worthwhile, for reasons as yet unclear, to treat them before the formal constraints of the original position are introduced. The point of Chapter 2 as a whole is also said to be to "explain the meaning and application" of the principles, two presumably distinct tasks.

After this introductory paragraph of the whole chapter section 10 opens which is the first full section of Chapter 2. Rawls opens this chapter with his general statement that the "primary subject of the principles of social justice is the basic structure of society", a statement followed by an interpretation of the meaning of "basic structure" as consisting in the "arrangement of major social institutions into one scheme of cooperation". So if the "basic structure" consists of the "major social institutions" it is not surprising to find that Rawls does need to discuss the meaning of the term "institution". The "rights and duties" applicable to these institutions are taken to determine the general appropriate distribution of "benefits and burdens" in social life as a whole. But the principles which apply to institutions are also distinct from those that relate to individuals (as becomes further apparent in the final two sections of Chapter 2 where Rawls looks, after the principal business of the chapter has been concluded, at principles for individuals).

After making these general points distinguishing principles for institutions from principles for individuals on the one hand and defining the primary subject of justice in relation to major institutions on the other Rawls turns to one of the two primary points of section 10, namely the provision of what turns into a two-fold discussion of the "theory" of institutions. The first type of "theory" emerges as Rawls describes and defines the nature of what he means by an "institution". An institution is, he says, "a public system of rules which defines offices and positions" along with attendant rights, duties and so on. The rules in question distinguish between what is allowed and what is forbidden and indicate penalties if the rules are breached. At this point Rawls is describing institutions in a very general way as inclusive of such things as rituals. However, the elaboration of the account of institutions next goes in two distinct directions. 

The first direction concerns the distinction between institutions considered abstractly and institutions concerned concretely. An abstract conception of institutions relates only to "possible" forms of conduct and thought whilst a concrete one deals with the realization of the institution. Although it is possible to describe both abstract and concrete forms of "institution" as just or unjust it is, in ordinary discussion, the concrete forms that attract most attention though the important point here is that if an abstract notion of an institution is unjust then this would vitiate any possible attempt to realize it, not just some specific way in which it had been realized. The understanding of concrete institutions is illustrated by Rawls' example of parliaments which are governed by certain rules in which general norms are meant to cohere together in an overall scheme. This example is specifically used by analogy with H.L.A. Hart's description of a legal system. 

This first division of the subject is only of serious interest in that Rawls describes the general usage of just or unjust as applied to concrete institutions as the "best" use of the terms in relation to institutions, an odd view given that it is basically abstract institutions that we would be expecting from his own theory. More importantly than this peculiar point, however, is that the general description of an institution as a public system of rules allows Rawls, for the first time, to really say something about publicity. The sense that an institution is such a public system leads Rawls to assimilate the general notion of an institution to that of a contract. This is despite the fact that Rawls is aware that it is a "simplifying assumption" in relation to actual institutions (and it is to the latter that appellations of just or unjust would be "best" applied).

It is through the publicity of the rules in question that a general epistemic result is achieved: that of ensuring the norms expected of those engaged in its running are known to those so engaged. Now, if the institution in question belonged also to a "well-ordered society" (was, in this sense, an "abstract" one) then there would follow from this epistemic result "a public understanding of what is just and unjust". This is why when the following chapter deals with the constraints of right one of these is a principle of publicity and Rawls thus ties publicity and justice very closely together (at least in ideal theory).

Having made the distinction between abstract and concrete institutions Rawls has effectively made clear the basis for the former's theory of institutions to reside in a clear commitment to publicity and in this sense the discussion here parallels the Kantian account of publicity in Perpetual Peace. Having done this, however, the second sense of a "theory" of institutions comes into view in the section. Rawls borrows from John Searle a distinction between "constitutive rules" and "strategies and maxims". According to this distinction the institution is established by means of rules that broadly define rights and duties but the strategies and maxims relate to how the institution is used by those who belong to it. The latter are not themselves "part" of the institution but are said instead to be part of its "theory". In saying the strategies and maxims are part of the "theory" of the institution Rawls is using the term "theory" in a specific way and in a way that is distinct from the way we might think of the discussion of institutions up until this point in section 10 as indicative of a "theory" of institutions.

If the distinction between abstract and concrete institutions and the general definition of an institution as a "public system of rules" is indicative of a kind of "theory" of institutions then it is not a "theory" that is at work primarily in relation to how the members of an institution work within it. It is rather what one might call a "theoretician's theory" of the institution whilst the strategies and maxims adopted within the institution are, by contrast, indicative of a "practitioners theory". The "practitioners" have a theory of the institution in the sense that they want to work out how best to live and thrive within it, a "theory" that we might think of as a way of governing one's prudential and moral conduct within the institution's orbit. Such practitioners are not interested in the "constitutive" rules of the institution themselves except in relation to utilising them for their own ends (which may or may not be the "ends" of the institution itself). Further the general rules of the institution may encourage behaviours in its members that are far from being those which it was intended the institution should further. This is indicative of one of the problems of social reform since the ways in which practitioners' theories will develop would have to be taken careful account of by anyone who wished to alter the constitutive rules of an institution. As Rawls puts this: "The conduct of individuals guided by their rational plans should be coordinated as far as possible to achieve results which although not intended or perhaps even foreseen by them are nevertheless the best ones from the standpoint of social justice". So the point of the way the institution is set up would be to produce an end much like the one Adam Smith attributed to the market as one in which the rational and prudential aims of individuals tended to converge with what was socially best on the whole without it being necessary that the end of producing such a result be itself required to be adopted by anyone in particular. This "hidden hand" would be, as it were, built into the institution or such is the aim of social reform to help bring this about.

Having set out first the distinction between abstract and concrete institutions and then having made the distinction between two types of theory of institutions Rawls next looks at the different ways institutions could be unjust. The point made here is that institutions are not necessarily in themselves unjust as such just because some of the rules by which they operate are. It is also possible, within a social system, that the injustices of some institutions are outweighed by the virtues of others or compensated in some way by the latter. Finally a social system could be unjust even though none of the specific institutions making it up was as a result of something in the combination of these parts together. 

Having made these general remarks about the different possible scopes of application of the notion of just or unjust in relation to institutions Rawls mentions, but only to discard, a  possible meaning of a "theory" of justice as a way of articulating again his own conception of a "theory" of it. Rituals are, as Rawls puts it, not usually regarded as being in themselves just although they clearly are types of institution, so would belong within what he terms a "general" theory of institutions. But this "general" theory which might be part of a very general account of "justice" is not what Rawls wants to present as he is only concerned with the "basic structure" of society and therefore with what he terms "the standard cases of social justice".

So the "theory" of justice is a "theory" of social justice, a type of theory that emerges from a restricted (and not a "general") theory of institutions. In this "theory" the emphasis is on the "basic structure" and its rules. The "basic structure", to emphasize again, concerns the "fundamental rights and duties" and therefore the "division of advantages from social cooperation". Now, given this account, any social system one can imagine will be governed by the rules of its "basic structure" and hence will enshrine a certain type of conception of justice even if the general conception in question is not manifestly visible at all times or to all peoples (since the society may not be that well-ordered and so may not adhere very clearly or consistently to a principle of publicity).

Within the general conception of any given basic structure it is to be expected that there could, even within a set-up that was in many ways "unjust", be a commitment to impartial application of the rules by which institutions are governed. If a commitment to such impartial administration did exist then the institutions would therefore treat similar cases in a similar way. Such a view of justice, based on the impartial and consistent application of the norms in question, is presented by Rawls as a "formal" conception of it. "If we think of justice as always expressing a kind of equality, then formal justice requires that in their administration laws and institutions should apply equally (that is, in the same way) to those belonging to the classes defined by them."

This formal conception of justice that Rawls here entertains is taken, as we discovered the notion of "classical utilitarianism" was, from Sidgwick. Such a formal notion of justice is also described by Rawls as "adherence to principle" or "obedience to system" (and these characterisations perhaps have ominous echoes of the "Eichmann defence" from his infamous trial). This conception is clearly insufficient to prevent injustice since discrimination between groups, even to the point of slavery, is quite consistent with it. Rawls also describes formal justice as "justice as regularity". Although it is clearly a conception that appears problematic it is not true that the notion of it does not have important things to it that are worth consideration since the commitment to impartiality embedded in its application rules out corruption of officials. Consistency of application further ensures that even unjust rules create stable patterns of expectations which prevents arbitrary rule. 

This discussion of formal justice is the final subject of section 10 and it ends with an inconclusive contrast being drawn between formal and substantive notions of justice. The reason why this contrast emerges is due to the allegation (made by Lon Fuller amongst others) that a purely formal system of justice could never (or very rarely) be administrated impartially. The nature of discriminatory institutions set up to serve some at the expense of others is such that the practitioners theory of those running such institutions would be one that permitted them to alter constitutive rules as they saw fit and hence could not create stable patterns of expectations. Such an accusation is akin to Kant's remark, again in Perpetual Peace, that non-republican systems of government ("despotisms" as he termed them) are essentially without form. Holding such a view effectively leads to the conception that the "formal" conception of justice indicates something like a state of nature in operation.

Under the objection Fuller made to the "formal conception" of justice there is an indication of a need for law-makers and leaders of institutions to be required to commit to a conception of justice in order for the institutions to have any way of even meeting truly formal requirements as are expressed in the notion of the Rule of Law. On this kind of view it is only if there is a substantive notion of justice that legislators are tied to that the possibilities of impartial administration can be satisfied. However although Rawls mentions this view of Fuller's here (a view that we have seen as having a formal connection to Kant's view) he does not investigate its contentions at this point. Rather the section concludes with the argument that the Fuller view can only be assessed after the work of the rest of Chapter 2 and the whole of Chapter 3 has been done. So Rawls here sets down a promissory note indicating that the Fuller view will be returned to and assessed but only after the real subject of justice in Rawls' own view has been suitably addressed in sufficient detail.

Wednesday, 4 May 2011

Rawls, Intuitionism and the Priority Problem

The final three sections of the first chapter of A Theory of Justice all concern, in one way or another, the question of how to establish rules of priority between distinct principles of justice. It is in this context that Rawls discusses intuitionism, which is treated exclusively as a sceptical doctrine asserting the impossibility of arriving at any such priority rules and appealing only to an ill-defined notion of "intuition" when confronted with such problems.

There are two points to make about these final sections of the first chapter. The first point is that this is a very odd view of intuitionism, the second concerns the constructive case Rawls gives here for responding to the putative sceptical challenge posed by intuitionism. It is in the seventh section of the first chapter that Rawls discusses intuitionism. However, whilst the view of utilitarianism presented in the previous two sections drew essentially on Henry Sidgwick's account of utilitarianism, it is not the case that there is a parallel source for Rawls' view of intuitionism. In a footnote Rawls refers to a series of sources for his conception of intuitionism as basically a sceptical view of priority rules but none of these are classic intuitionist texts. The latter are also mentioned by Rawls but only as sources for the epistemic view of intuitionism that he basically leaves aside. The view that the right or the good is unanalyzable, questions of self-evidence, the status of prima facie duties as a specific class of duties, all these issues are left aside so Rawls gives instead a "broad sense" of the doctrine that becomes equivalent to pluralism in the sense that it recognises a plurality of first principles (but fails to offer a means of setting them in priority formations). 

In presenting intuitionism in this way Rawls certainly does the doctrine a disservice. Interestingly, Sidgwick, by contrast, effectively conflated intuitionism with common sense morality and then argued for the need for a higher principle than common sense morality in the form of the principle of utility. If Rawls had adopted a similar stance towards intuitionism then his treatment of it could have echoed Kant's reply to the common view of morality as presented in the first section of the Groundwork. There are traces of an approach of this sort as when Rawls considers the example of fair wages and relates this to everyday ideas of justice concluding: "To reach some measure of understanding and agreement which goes beyond a mere de facto resolution of competing interests and a reliance on existing conventions and established expectations, it is necessary to move to a more general scheme for determining the balance of precepts, or at least for confining it within narrower limits". Here we have a clear echo of the Sidgwick approach which does bear a close relation to Kant's response in Groundwork I.

However, despite this echo, the main point of Rawls' response to intuitionism is in terms of the sceptical challenge it is alleged to pose. In relation to such a challenge the key point is to present the criteria that enable priority rules to be given. So, in treating intuitionism primarily as a sceptical doctrine Rawls simply sets it up as a foil that enables the constructive case to get going. In doing this Rawls indicates the key point is how to limit the appeal to intuition, just as, in his setting out of the priority of the right over the good, he aimed at undercutting the appeal to given desires as valuable in themselves.

There are three ways that Rawls aims to limit the appeal to intuition. The first point relates to the choice situation that is the "original position". In the "original position" part of the point is to abstract away from principles that may seem intuitively plausible given a certain place in society so here the appeal to intuition is treated as a kind of social prejudice (echoes again here of Sidgwick). Rather than rest on appeals to self-evidence we take a choice situation in which the abstraction involved prevents us from being able to make assumptions grounded in a social "common sense" that may be variable given different roles. So the first way of limiting intuition is through utilisation of the "original position" and this utilisation has precisely the same kind of point as the priority of the right over the good, namely, it eliminates the ability to appeal to something currently existent as a value.

The second way of appealing to intuition is to present a case for treating principles in order, to present a response, that is, to the priority problem of a sort that the sceptic has deemed impossible. If the principles really can be shown to have a lexical ordering then one would only invoke some of them in situations where the others are sufficiently satisfied (again, a structural point comparable to the priority of the right over the good). Clearly this assumes, at this stage, something that the sceptical intuitionist has called into doubt and so does not reply to this doubt but does indicate a way we can expect the priority problem to be tackled by means of showing the grounds for lexical priority of some principles at the cost of others.

Thirdly, dependence on intuition can be reduced by introducing prudential considerations in place of moral ones. This appears an odd way of limiting appeal to intuition. However, what Rawls means by it is less peculiar than his formulation might suggest. This concerns the appeal to the standard of the "representative person" and asking whether it is more rational to prefer one type of arrangement or another. This appeal does not eliminate intuition but it does re-describe its scope since the standard of such a person is adopted in a generic way and this is what leads to the diminution of simple moral points being made.

The final section of the chapter reverts to making some general remarks about moral theory, remarks that re-treat in part the initial paper Rawls wrote on decision procedures in ethics. This involves appealing to the notion that each person develops a sense of justice with relation to intellectual maturity and then describes a conception of justice as something that characterizes our moral sensibility. Given that this is the role of the conception of justice there is a basic claim that common sense morality, by virtue of its lack of systematic character, does not really comprehend the sense of justice that it displays. (So here again we have a parallel to Sidgwick's response to intuitionism and Kant's to common morality.)

After making this negative comment Rawls introduces, for the first time in the book, the notion of "reflective equilibrium". The point of introducing it is related to the previous description of the reason for moral theory: "From the standpoint of moral theory, the best account of a person's sense of justice is not the one which fits his judgments prior to his examining any conception of justice, but rather the one which matches his judgments in reflective equilibrium". What goes on in reflective equilibrium is the consideration of one's basic principles in relation to an account of them that leads to their systematisation. 

However, after this first pass at the notion of "reflective equilibrium" has been made Rawls goes on to look at other interpretations of it as an idea. The idea varies depending upon whether one is presented with descriptions (or theories) that vary from one's practice in only minor detail or whether there is instead a much more comprehensive and wide-ranging consideration of theories and descriptions of one's moral sense. The latter is clearly what is generally at work in moral theory. What this shows for Rawls is that the theory that needs to be considered is "a theory of the moral sentiments", a key point that will be returned to in detail in subsequent parts of the book. However such an account has to use "contingent assumptions and general facts", not merely definitions and references to logic (which latter is treated by Rawls as if it were exhaustive of the "a priori"). Again, in adopting this standard Rawls aligns his enquiry with that of Sidgwick.

Tuesday, 3 May 2011

Rawls and "Classical Utilitarianism" (II)

In a recent posting I looked at Rawls' critical response to utilitarianism in the fifth section of the first chapter of A Theory of Justice. However, the reply to "classical utilitarianism" carries on after this fifth section into the sixth section. Whilst the discussion in the sixth section does repeat some of the motifs of the fifth section, particularly the claim concerning utilitarianism abstracting from the separateness of persons, it also expands the contrast set out in the previous section between utilitarianism and justice as fairness.

The first contrast Rawls draws in the sixth section is between the two theories' response to common sense morality. Again, as was pointed out in the previous posting, Rawls has Sidgwick implicitly in mind here given that the Methods of Ethics took seriously from the first the notion of "common sense morality". Naturally Rawls' response to the challenge of common sense morality differs from that of Sidgwick since Rawls assumes that justice as fairness can take the claims of common sense morality more seriously than can utilitarianism. The main reason given for taking this to be true is that the convictions of common sense morality concerning justice are assumed to be consequences of the principles that would be chosen in the original position. This assumption is quite different from the utilitarian one which adopts the more empiricist argument of viewing common sense morality as having a generic good function even though the rules of it are secondary to those of utilitarianism. (Rawls does not here invoke the general "Government House" conception that Sidgwick adheres to of taking the dictates of common sense morality to be ones that might be publicly adhered to whilst secretly one is committed to utilitarianism. Given Rawls' own conviction of the importance of the publicity of principles of justice and the way this conception cuts directly against requirements of common sense morality we have here a stronger argument for viewing justice as fairness as taking common sense morality more seriously than utilitarianism than Rawls gives in the text!)

The second contrast between justice as fairness and utilitarianism is the more familiar one that suggests the contractarian nature of the former is effectively more social in form than the principle of the latter given that the latter extends the principle of choice for one man to the whole of society. This contrast invokes the charge of abstraction from the separateness of persons against utilitarianism and so is simply a restatement of the argument of the fifth section.

The third contrast invokes the distinction between deontological and teleological approaches to ethics, a contrast related to the question of the priority of the right over the good or vice versa. The sense in which justice as fairness is a deontological view is specified here as being that it does not interpret the right as maximising the good. Whilst this point is familiar in some respects the means by which Rawls defends it in this sixth section is unexpected. It concerns the manner in which the good is taken to be prior to the right by utilitarians. If the utilitarian theory is viewed as giving priority to the good over the right the natural question arises concerning what the good is taken to be by this theory. Here Rawls makes the key point that the good is simply assumed to be that which is desired. In other terms, whatever is desired would appear to have value so the question of maximisation arises due to a prior commitment to this conflation of the good with the desirable. It is natural to wish to maximise the desirable and if the good is viewed through the prism of the desirable then the maximisation strategy is intuitively plausible as a whole.

However, following Kant's argument concerning the nature of happiness, Rawls does not accept a prima facie value as attached to whatever is desired. Rather, Rawls takes it to be the case that only that which matches the principles of right has value. The principle of right restricts (and thereby realises) what can be taken to be good. This is the point of the notion of the priority of the right over the good: the right provides us with formal characteristics that have to be satisfied in order that something can be taken to be good. In lieu of these being satisfied you merely have something that some may wish for but not something that has any status of value as such. As Rawls puts this: "desires and aspirations are restricted from the outset by the principles of justice which specify the boundaries that men's systems of ends must respect". So only certain kinds of ends will be taken seriously as only these ends are worthy of being taken seriously (just as Kant writes that it is only under certain conditions that one is "worthy of" happiness).

Because of the way the contrast between utilitarianism and justice as fairness has here been characterised the priority of the right over the good becomes clarified as central to the conception of justice that justice as fairness elaborates. It has a moral ideal that guides the selection of any possible end as being acceptable as a value and there is therefore no value in a basic sense prior to the formal criteria of right. This second set of contrasts hence makes much clearer the core conceptions of justice as fairness.