More Still on the Ideal and the Real

Me:

Larry thanks for your last email as well. Respectful disagreement in these matters is all to the good.

You are sharp immediately to hone in on “necessary”. And your assumption as to my position is right—“it's not necessary to question his presupposition in order to arrive at a usable notion of justice.” I can’t recall if I have formulated the reason why this way, but one reason is that justice as an overarching idea is necessarily implicated in the three theories. Justice necessarily includes notions of equal sharing, maximizing overall good and the primacy of individual rights as against the sharing or maximizing claims of the two formers.

So I stay a little lost in your repeated line of argument, if I’m getting it right. You say that we must give explicit and sufficient content to the overarching idea of justice. Otherwise, we are reduced to an unprincipled, arbitrary and question begging resort to one of the three theories in resolving who gets the flute in any circumstances. For Sen and Halbertal, you say, “capablities” is just another word for a circularly reasoned justification for the answer.

You have a point in that line of argument. But that point is good only if the flute's fate can be answered by some notion sturdier, more serviceable and self justifying than “capabilities”. Your notion must encapsulate justice comprehensively. That of course gets you right back to the fundamental issue: whether such a notion can be formulated and be serviceable as to, for one instance amongst many, who gets the flute. Sen and Halbertal say it cannot, as do I. It will convince no one who takes your view of the matter, as you rightly note, simply to say, “it cannot” or “it is inconceivable to me.”

But what now reemerges is that we have different notions of the meaning of justice. Yours, the very idea Halbertal via Sen argues against, is, to repeat, an encapsulating yet comprehensive theory of justice that will tell us with predictble consistency who gets the flute.

At this point it is a distraction to take on your counters to what I claimed as trite. The distraction is not because, as you say, “Now, each of your propositions and my contradictions could obviously be argued much further, taking us down that long road…” Rather, let me issue a different challenge to your “Ideal” by my resort to Halbertal’s “Real”.

My “Real”— based challenge to you is this: give me an example of any society that manifested, for better or worse, justice as anything but, analytically, trade offs, tensions, adjustments, the balancing of competing claims and so on. If you can't, and that's my presumption, you will need, I argue, to question both the utility of a long voyage and, prior to that, whether it will take you anywhere. Here I’m going to repeat what I said before because it fits:

“I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim.”

To reduce this challenge to one concrete case among many: has there ever been a regime without expropriating power? For example, in America and by its Constitution, according to Wikipedia:

“The power of governments to take private real or personal property has always existed in the United States, being an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may so delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, "...nor shall private property be taken for public use, without just compensation". The Fifth Amendment did not create the national government's right to use the eminent domain power, it simply limited it to public use.”

Always and everywhere, I suggest to you, as a matter of the “Real”, the state can expropriate the flute.

So, I say, for the way I conceive justice, not only needn't we go behind Halbertal's presupposition, but, further, doing so is impossible for the way you conceive justice. Your conception insistently wants to get to Halbertal's “Ideal”.