Justice in Transactions: A Public Basis for Justifying Contract Law?

2021 ◽  
Vol 17 (2) ◽  
pp. 231-244
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Contract Theory ◽  
Contract Law ◽  
The Political ◽  
Public Justification ◽  
Liberal Democracies ◽  
Political Justice ◽  
Critical Potential ◽  
Political Autonomy ◽  
Theory Of Justice ◽  
Reasonable Pluralism

Abstract This paper challenges Peter Benson’s claim that his theory of justice in transactions can provide a public basis of justification in the Rawlsian sense specifically worked out for contract law. It argues that Benson’s distinct conception of the contracting parties and their relationships makes it an unlikely candidate for public justification in contemporary liberal democracies that are characterized by the fact of a reasonable pluralism of worldviews. Moreover, Benson’s method of deriving principles of contractual justice from existing contract law doctrines and principles risks pre-empting any critical potential for normative contract theory. In addition, its quasi universalism seems difficult to match with the political autonomy of citizens in democratic societies. Finally, Benson’s understanding of contract law as separate from politics appears at odds, not merely with Rawlsian political justice, but with the very idea of public justification.

Exercising Deliberative Agency in Deliberative Systems

2017 ◽  
Vol 66 (3) ◽  
pp. 635-650 ◽  
Author(s):  
Martin Ebeling ◽  
Fabio Wolkenstein
Keyword(s):  
Political Parties ◽  
Deliberative Democracy ◽  
Common Good ◽  
Theoretical Development ◽  
The Political ◽  
Public Justification ◽  
Political Systems ◽  
Political Autonomy ◽  
The Common ◽  
The Ideal

At the heart of the ideal of deliberative democracy lies an emphasis on the political autonomy of citizens participating in procedures of public justification aimed at the promotion of the common good. The recent systemic turn in deliberative democracy has moved so far away from this ideal that it relegates the deliberations of citizens to a secondary matter, legitimising forms of rule that may even undermine the normative impulses central to the project of deliberative democracy. We critically discuss this theoretical development and show how deliberative agency can effectively be exercised in complex political systems. We argue, in particular, that political parties play a central role in facilitating the exercise of deliberative agency, fostering deliberation among citizens and linking their deliberations to decisions. Instead of giving up on the possibility that citizens participate in procedures of public justification, deliberative democrats should look to parties’ unique ability to enable deliberation.

Giving Thrasymachus his Due: The Political Argument of Republic I and its Reception

2007 ◽  
Vol 24 (1) ◽  
pp. 26-42
Author(s):  
Cary J. Nederman
Keyword(s):  
Early Modern ◽  
Current Paper ◽  
The Political ◽  
Political Justice ◽  
Late Work ◽  
Theory Of Justice ◽  
The Law ◽  
Political Interpretation

This paper focuses on the first iteration of Thrasymachus’ claim as reported in Book I of Plato’s Republic that ‘justice is the interest of the stronger’, namely, a ‘political’ interpretation, according to which ‘justice is the interest of the stronger party in each polis as established in the law’. The author contends that this argument is logically and rhetorically distinct from Thrasymachus’ subsequent restatements of his position in Republic I. The ‘political’ version of the Thrasymachean position enjoyed currency after the composition of the Republic — and in a way that was not entirely negative. The current paper examines two cases of this reception: the first, in Plato’s own late work, the Laws, where he reengages with the Thrasymachean doctrine; the second, in the De republica Anglorum of Sir Thomas Smith, an early modern theorist who self-consciously defended Thrasymachus’ theory of justice. The paper’s immediate purpose is to suggest that Thrasymachus’ conception of ‘political’ justice, in particular, has far more coherence and power than the supposed ‘refutation’ of it in the Republic might leads us to believe.

scholarly journals Justiça, Equidade e Liberalismo em Rawls

2015 ◽  
Vol 6 (11) ◽  
pp. 1-20
Author(s):  
Mateus Salvadori
Keyword(s):  
John Rawls ◽  
Political Liberalism ◽  
Basic Structure ◽  
Political Justice ◽  
Theory Of Justice ◽  
Reasonable Pluralism ◽  
The Social ◽  
Social Interests ◽  
Comprehensive Doctrines ◽  
The Relationship

A teoria da justiça proposta por John Rawls investiga a estrutura básica da sociedade, tendo como base a justiça política, a justiça pública e a justiça distributiva. Rawls propõe uma teoria que representa uma alternativa ao utilitarismo, pois para o autor os direitos não deverão estar sujeitos à negociações políticas ou sujeitos ao cálculo de interesses sociais. É através do contrato social que Rawls busca apresentar a relação entre justiça, equidade e liberalismo político.Abstract: The theory of justice proposed by John Rawls investigates the basic structure of society, based on political justice, public justice and distributive justice. Rawls proposed a theory that is an alternative to utilitarianism, in which rights should not be subject to political negotiations or subject to calculation of social interests. It is through the social contract that Rawls seeks to present the relationship between justice, equity and political liberalism. Keywords: Rawls, liberty, equality, reasonable pluralism, comprehensive doctrines.

Social Norms, Choice, and Work

2018 ◽  
Author(s):  
Christie Hartley
Keyword(s):  
Labor Market ◽  
Social Norms ◽  
Division Of Labor ◽  
Family Life ◽  
Work And Family ◽  
Personal Relationships ◽  
The Political ◽  
Liberal Democracies ◽  
Men And Women ◽  
Gendered Division Of Labor

In modern liberal democracies, the gendered division of labor is partially the result of men and women making different choices about work and family life, even if such choices stem from social norms about gender. The choices that women make relative to men’s disadvantage them in various ways: such choices lead them to earn less, enjoy less power and prestige in the labor market, be less able to participate in the political sphere on an equal basis, make them to some degree financially dependent on others, and leave them at a bargaining disadvantage and vulnerable in certain personal relationships. This chapter considers if and when the state should intervene to address women’s disadvantage and inequalities that are the result of gender specialization. It is argued that political liberals can and sometimes must intervene in the gendered division of labor when persons’ interests as free and equal citizens are frustrated.

Autonomy in Transactions

2021 ◽  
Vol 17 (2) ◽  
pp. 170-183
Author(s):  
Thomas Gutmann
Keyword(s):  
Division Of Labor ◽  
Political Liberalism ◽  
Mutual Recognition ◽  
Contract Law ◽  
Liberal Theory ◽  
Public Justification ◽  
Individual Rights ◽  
Principles Of Justice ◽  
Normative Foundations

Abstract The article presents a ‘critique from within’ of Peter Benson’s book ‘Justice in Transactions’, while sharing its premise that a theory of contract has to be liberal one. It identifies three problems with Benson’s answer to the question of how the relation between freedom and equality in contract law should be understood. It criticizes Benson’s Hegelian metaphysics and claims that a principle of mutual recognition and respect between juridical persons does not require that contracts only allow the alienation and appropriation of different things of the quantitatively same value. It demonstrates that Rawls’s idea of a ‘division of labor’ within principles of justice is more plausible than Benson’s reformulated account, which loses sight of the premise that a liberal theory of contract must locate the normative foundations of ‘contract’ in individual rights, and, in addition, is at odds with Rawls’s project in ‘Political Liberalism’ and its concept of public justification.

Rationality revisited: Politicisation through planning rationality against the rationality of power

2021 ◽  
pp. 147309522110011
Author(s):  
Esin Özdemir
Keyword(s):  
Public Interest ◽  
General Position ◽  
Strong Relationship ◽  
Planning Theory ◽  
The Political ◽  
Rational Thinking ◽  
Liberal Democracies ◽  
Substantive Issue ◽  
Rational Consensus ◽  
Definition Of

In this article, I readdress the issue of rationality, which has been so far considered in western liberal democracies and in planning theory as procedural, and more recently as post-political in the post-foundational approach, aiming to show how it can gain a substantive and politicising character. I first discuss the problems and limits of the treatment of rational thinking as well as rational consensus-seeking as merely procedural and post-political. Secondly, utilising the notion of Realrationalität of Flyvbjerg, I discuss how rationality attains a politicising role due to its strong relationship with power. Using the concept of planning rationality aiming at public interest, I present the general position and actions of professional organisations in Turkey, focusing on the Chamber of City Planners, as an example illustrative of my argument. I finally argue that rationality becomes a substantive issue that politicizes planning, when it is put forward as an alternative to authoritarian market logic. In doing so, I adopt the Rancièrian definition of the political, defined as disclosure of a wrong and staging of equality. In conclusion, I first emphasize the importance of avoiding quick rejections of the concepts of rationality and consensus in the framework of planning activity and planning theory and secondly, call for a broader definition of the political; the political that is not confined to conflict but is open to rational thinking and rational consensus.

The prospects for pluralism in contract theory

Legal Studies ◽  
2021 ◽  
pp. 1-20
Author(s):  
Zhong Xing Tan
Keyword(s):  
Contract Theory ◽  
Practical Reasoning ◽  
Contemporary Literature ◽  
Contract Law ◽  
Macro Level ◽  
Meso Level ◽  
Specific Performance ◽  
Micro Level

Abstract This paper explores the promise of pluralism in the realm of contract law. I begin by identifying and rejecting conceptual strategies adopted by monistic and dualistic approaches. Turning towards pluralism, I evaluate three versions in contemporary literature: pluralism across contracting spheres and types, pluralism through consensus and convergence, and pluralism through localised values-balancing and practical reasoning. I suggest embracing some pluralism about contract pluralism, by using these models to construct a framework of ‘meta-pluralism’, where at the macro-level, we are concerned with plural spheres of contracting activity; at the meso-level, a variety of trans-substantive interpretive concepts that receive some measure of juristic consensus; and at the micro-level, practical reasoning through particularistic analysis of case-specific considerations. I illustrate the meta-pluralistic framework through a case study on the varieties of specific performance, and explain how the proposed pluralistic framework enriches our understanding of the nature of contract.

Shared intentions, public reason, and political autonomy

2019 ◽  
Vol 49 (6) ◽  
pp. 776-804 ◽  
Author(s):  
Blain Neufeld
Keyword(s):  
John Rawls ◽  
Public Reason ◽  
State Power ◽  
Public Justification ◽  
Political Autonomy ◽  
Public Reasoning ◽  
Corporate Body ◽  
Gerald Gaus

AbstractJohn Rawls claims that public reasoning is the reasoning of ‘equal citizens who as a corporate body impose rules on one another backed by sanctions of state power’. Drawing upon an amended version of Michael Bratman’s theory of shared intentions, I flesh out this claim by developing the ‘civic people’ account of public reason. Citizens realize ‘full’ political autonomy as members of a civic people. Full political autonomy, though, cannot be realised by citizens in societies governed by a ‘constrained proceduralist’ account of democratic self-government, or the ‘convergence’ account of public justification formulated recently by Gerald Gaus and Kevin Vallier.

Uma Justificação Coerentista dos Direitos Humanos em Rawls

2010 ◽  
Vol 18 (36) ◽  
pp. 109-125
Author(s):  
Denis Coitinho Silveira ◽  
Keyword(s):  
Human Rights ◽  
Main Idea ◽  
Moral Justification ◽  
Public Justification ◽  
Law Of Peoples ◽  
Theory Of Justice ◽  
Pragmatic Function ◽  
Primary Goods ◽  
The Law ◽  
Political Foundation

The aim of this paper is to identify how the ethical-political foundation of human rights in John Rawls’s theory of justice makes use of a coherentist model of moral justification in which cognitivism, liberalism, pluralism, non-foundationalism, and mitigated intuititionism stand out, leading to a pragmatic model of foundation with public justification in The Law of Peoples (LP). The main idea is to think about the reasonableness of the universal defence of human rights as primary goods with the aspects foliows: its political nature, not metaphysical; its theoretical coherentist model, non-foundationalist; its pragmatic function and its public justification.

La Idea de “Razón Publica” (y su Revisión) en el Último Rawls

2003 ◽  
Vol 11 (22) ◽  
pp. 5-31
Author(s):  
Fernando Aranda Fraga ◽  
Keyword(s):  
Political Philosophy ◽  
Public Good ◽  
John Rawls ◽  
Public Reason ◽  
Political Liberalism ◽  
The Political ◽  
Theory Of Justice ◽  
Key Topics ◽  
Political Philosopher

In 1993 John Rawls published his main and longest work since 1971, where he had published his reknowned A Theory of Justice, book that made him famous as the greatest political philosopher of the century. We are referring to Political Liberalism, a summary of his writings of the 80’s and the first half of the 90’s, where he attempts to answer the critics of his intellectual partners, communitarian philosophers. One of the key topics in this book is the issue of “public reason”, whose object is nothing else than public good, and on which the principles and proceedings of justice are to be applied. The book was so important for the political philosophy of the time that in 1997 Rawls had to go through the 1993 edition, becoming this new one the last relevant writing published before the death of the Harvard philosopher in November 2002.

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