John Rawls: A Theory of justice กฤษณ์พชร โสมณวัตร คณะนิติศาสตร์ มหาวิทยาลัยเชียงใหม่

พระราชดำรัสของพระบาทสมเด็จพระเจ้าอยู่หัวว่าด้วยความยุติธรรม   “...กฎหมายมิใช่ตัวความยุติธรรม หากเป็นแต่เพียงบทบัญญัติหรือปัจจัยที่ตราไว้เพื่อรักษาความยุติธรรม ผู้ใดก็ตามแม้ไม่รู้ กฎหมายแต่ถ้าประพฤติปฏิบัติด้วยความสุจริตแล้วควรจะ ได้รับความคุ้มครองจากกฎหมายอย่างเต็มที่ ตรงกันข้ามคนที่รู้กฎหมายแต่ใช้ กฎหมายไปในทางทุจริตควรต้องถือว่าทุจริต...” (พระบาทสมเด็จพระเจ้าอยู่หัวภูมิพลฯ: 2522)  “...กฎหมายนั้นไม่ใช่ตัวความยุติธรรม เป็นแต่เพียงเครื่องมืออย่างหนึ่ง สำหรับใช้ในการรักษาและอำนวยความยุติธรรมเท่านั้น การใช้ กฎหมายจึงต้องมุ่งหมายใช้เพื่อรักษาความยุติธรรมไม่ใช่เพื่อรักษาตัวบทของกฎหมายเอง และการรักษาความยุติธรรมใน แผ่นดิน ก็มิได้มีวงแคบอยู่เพียงแค่ขอบเขตของกฎหมาย หากต้องขยายออกไปให้ถึงศีลธรรมจรรยาตลอดจนเหตุและผลตามความเป็น จริงด้วย...” (พระบาทสมเด็จพระเจ้าอยู่หัวภูมิพลฯ: 2524)

Significant of justice Justice is the first virtue of social institutions and of system of thought Laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Liberties of equal citizenship which secured by justice are not subject to political bargaining or to calculus of social interest. Injustice is only tolerable when it necessary to avoid an even greater injustice. Justice is uncompromising

BUT what the JUSTICE is?

Subject of justice Many different kinds of things are said to be just and unjust Laws, institutions, and social system? Attitudes, disposition and persons themselves as well By nature, justice is not only about “Formal justice” but also “Social justice” According to Rawls’s book, primary subject of justice is the basic structure of society (the way in which major institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation) Such as legal protection of freedom of thought, liberty of conscious, competitive market, private property, monogamous family

John rawls (1921-2002) American political philosopher in liberal tradition Used to have strong faith in Christianity, but lose that faith as infantryman in WWII Used to work with H.L.A Hart at Oxford Professor of Political Philosophy at Harvard Anti-war movement during Vietnam war Major idea is Justice as Fairness

Context of rawls Academic Background: political philosophy, logic analysis, liberalism Christianity and losing faith: liberalism, secularism World war 2 and Vietnam war: pacifist, civil liberty Debate of Liberalism and Socialism: making alternative theory; compromising two radical ideas Dominant of Utilitarianism: go beyond countable utility to the problem of ‘Legitimacy’

Rawls on Functions of political philosophy Finding base for reasoned agreement to discover conflict resolution To help citizens to orient themselves within their own social world To probe the limits of practicable possibility; philosophy imagines how laws might be. Philosophy can show that human life is not simply domination and cruelty, prejudice, folly and corruption; but that at least in some ways it is better that it has become as it is.

Rawls’s philosophical project As a political philosopher, John Rawls looked for the “base of reasoned agreement”, “limit of possibility”, “Rights and duty of citizens” and “Hope” in our society. He tried to pull the social philosophy to reach not only for just ‘reasonable legitimacy’ but also ‘possible ultimate legitimacy’ He tried to find the ‘agreement’ between ‘liberalism’ and ‘socialism’ His theory limits of legitimacy is peace, hope and possibility. All of these factors can be found in his greatest book called “A Theory of Justice”

Rawls has no universal principle: “The correct regulative principle for anything, depends on the nature of that thing”

Hypothesis of Rawls’s theory Society is well-ordered when it is not only designed to advance the good of its members BUT when it is also effectively regulated by public conception of justice, in which 1) everyone accepts and knows that the others accept the same principle of justice 2) the basic social institutions generally satisfy and are generally known to satisfy these principles. Existing societies are of course seldom well-ordered in this sense.

the stability of Overlapping Consensus Justice is not universal, dogma nor truth, but it depend on the nature of that thing. Each citizen supports political conception of justice for internal to her own comprehensive doctrine. Nature of each thing is different, so it is impossible to have ultimate consensus The Overlapping Consensus is only possibility to make the stable liberal society. citizens support the same basic laws for different reasons Justice is only the module to reach the overlapping consensus

Case study Ii Legalized Marijuana Banned Marijuana Medical purpose  utility Harm no one  moral Imaginative purpose  aesthetic Banned Marijuana Lose ability to concentrate  utility Sinful  moral

What is justice?  Some might say Legalized Marijuana Moral Utility Aesthetic Banned Marijuana Moral Utility Aesthetic Justice is not about to legalize or to ban weeds, BUT it the mechanism and procedural making possibility of the political institution to gather and organize the different comprehensive doctrine. Then assembly all ideas to create the OVERLAPPING CONSENSES for all people. Then JUSTICE will provide the stable liberal society

Original position Original position is the appropriate initial status quo which insures that the fundamental agreements reach in it are fair. Should we maintain the universal health care? Should we promote the rights of indigenous people? Should we abolish the private property regime? Should we promote some additional points for the student who usually attend to the class on time?

Should we entitle the rights of polar bears to live in the north pole?

There is the “Nature of choice problem”  Everyone decide ‘just’ or ‘unjust’ for their own horizon ‘rational decision has a definite answer only if we know the beliefs and interests of the parties, their relations with respect to one another…’

If one man knew he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures be counted unjust; if he was poor, he would most likely propose the contrary principle. Knowledge of those contingencies set men at odds and allows them to be guided by their prejudices. To avoid the prejudices, man need to enter the ‘Original position’ before deciding some justice issues.

Maximin utility So he will maximize the minimum level of good To understand the ‘problem of choice’, we need to explore the ‘maximin utility’ concept maximin reasoning: to maximize the minimum level of primary goods that the citizens they represent might find themselves with. Because, in the original position, no one will know that he will not be at the minimum utility. So he will maximize the minimum level of good

Veil of ignorance In ‘Original position’, man will behind the ‘veil of ignorance’ because he will not know his position in society which relate to the problem. Only within veil of ignorance, man will make the decision purely by rational without any prejudice. Original position is within veil of ignorance Man in original position will decide by the maximin reasoning.

How to cutting and sharring the cake? The individual cutting the cake is required to select a cut piece only after all others have selected their piece. The inferred solution is the cutter will cut all pieces equally to ensure an equitable piece.

“justice as fairness” Basically, Rawls’s JUSTICE is not the substantive concept, BUT it is the creation and designing the SOCIAL MACHANISM to reach the OVERLAPPING CONSENSUS To create the social mechanism which is ‘just’, we need to get rid of prejudices from the decisional process. Only the men in ‘Original position’ who are within the ‘Veil of ignorance’ can do such just decision Such the men will decide the problem by ‘Maximin reasoning’ JUSTICE is condition in which the authority of justice is in original position with veil of ignorance. And by nature of making choice substantive justice will be maximin.

limits of Rawls’s theory His theory was crafted in HYPOTHESIS of ‘JUST or NEARLY JUST SOCIETY’ And it is a philosophical discussion. Most of contents are not base on fact, but using interdisciplinary logical approach to reach the concept of justice. But, naturally, these limits are, at the same time, both advantage and disadvantage of philosophical theory.

Beyond rawls Before Rawls, there are a lot of scholars who try to explain justice such as Roussau, Kant, Mills, Aristotle, Marx etc. A Theory of Justice is just a theory within the steam of theories. After Rawls have Amataya Sen, Micheal Sandel etc. Other path of Rawls, there are Foucault, Derrida, De Sato etc. Justice can be defined in many different ways in near future.

Conclusion: Functions of Legal philosophy Finding base for reasoned agreement (legal legitimacy) to discover conflict resolution To help LAWYERS to orient themselves within their own social world To probe the limits of practicable possibility; philosophy imagines how LAWS might be. Philosophy can show that life of LAWYER is not simply domination and cruelty, prejudice, folly and corruption; but that at least in some ways it is better that it has become as it is.