The Circumstances of Justice: 2. “The ‘Circumstances of Justice’ in Hume and Rawls”

This is Part 2 of a four (or five) part series based on a conference-length version of a longer paper I’m currently preparing for submission to academic journals. Part 1 is just a brief introduction to the paper, but it has generated a deep and ongoing conversation about the nature of justice which is well worth reading (and joining). You can also consult the full paper at any time.

This section of the paper is more substantial, but it is also primarily exegetical. I’m certainly interested in hearing critiques or additions to my interpretations of Rawls and Hume. But we can also continue some of the deeper discussion about justice if some readers would like to critique substantive elements of Hume and/or Rawls as interpreted. Another question that might be worth exploring in light of our discussion of Part 1: how similar or different is this account of the circumstances of justice from the account(s) we find in Plato’s Republic?

II. The ‘Circumstances of Justice’ in Hume and Rawls

Hume’s account first appears in the Treatise of Human Nature, where he identifies justice as an artificial virtue, grounded in social conventions. These conventions arise in response to the natural mismatch between individual human needs and abilities – an inadequacy that can only be alleviated by joining together with others.[1] And yet this need for others only gives rise to considerations of justice when combined with further facts about the qualities of the human mind (“selfishness” and “limited generosity”) and about the situation of the external objects upon which we rely (“easy change” and “scarcity”).[2]

Justice finds its origins in the conventions that arise to address these basic human needs. Where there is no need for such conventions, there will be no justice on this account. But also, as Hume emphasizes when reprising these points in the second Enquiry, justice cannot arise where such conventions are inadequate for those needs. Extremes of either “abundance” or “necessity” would make justice useless, as would either “perfect moderation and humanity” or “perfect rapaciousness and malice.”[3] Finally, Hume adds a condition of ‘rough equality’ to the list of circumstances necessary for justice to apply, since justice would again prove useless with respect to those who have no power of resistance or reprisal. [4]

Drawing on Hume’s initial distinction between “the situation of external objects” and “qualities of the human mind,” Rawls divides his own account of the circumstances of justice into “objective” and “subjective” conditions. According to Rawls, the objective circumstances of justice are (numbering mine):

(1)[M]any individuals coexist together at the same time on a definite geographic territory. (2) These individuals are roughly similar in physical and mental powers; or at any rate, their capacities are comparable in that no one among them can dominate the rest. (3) They are vulnerable to attack, (4) and all are subject to having their plans blocked by the united force of others. (5) Finally, there is the condition of moderate scarcity…[5]

And the subjective circumstances are (numbering mine):

(6)[W]hile the parties have roughly similar needs and interests, or needs and interests in various ways complimentary, so that mutually advantageous cooperation among them is possible, (7) they nevertheless have their own plans of life. These plans, or conceptions of the good, lead them to have different ends and purposes, and to make conflicting claims on the natural and social resources available. Moreover, although the interests advanced by these plans are not assumed to be interests in the self, they are interests of a self that regards its conception of the good as worthy of recognition and that advances claims in its behalf as deserving satisfaction. (8) I also suppose that men suffer from various shortcomings of knowledge, thought, and judgment. Their knowledge is necessarily incomplete, their powers of reasoning, memory, and attention are always limited, and their judgment is likely to be distorted by anxiety, bias, and a preoccupation with their own affairs. Some of these defects spring from moral faults, from selfishness and negligence; but to a large degree, they are simply part of men’s natural situation. As a consequence individuals not only have different plans of life but (9) there exists a diversity of philosophical and religious belief, and of political and social doctrines.[6]

 

It is easy enough to see why Rawls credits Hume as his source when we look at the objective conditions. Conditions 2 and 5 appear explicitly in Hume’s account. Condition 3 is covered under Hume’s condition of ‘easy change,’ which in its initial elaboration includes a concern with the violent dispossession of the fruits of one’s labor and of one’s good fortune.[7] However, condition 4’s more general concern with one’s “plans” already represents a move away from Hume’s focus on basic human needs.  Finally, on the simplest reading, Condition 1 is simply a precondition for the operation of the other listed conditions, since, e.g. we are only vulnerable to attack when others are physically close enough to execute such an attack.[8]

The implausibility of Rawls’s claim to have added “nothing essential” to Hume’s list becomes clearer when we examine the subjective conditions. Condition 6 is easy enough to connect to Hume’s account, given the role of sympathy in his account of moral motivation, and given his contention that motives of perfect malice would render justice useless. But in specifying Condition 7, Rawls explicitly rejects a tendency toward selfishness as a pre-condition for the circumstances of justice. To be sure, Hume’s own account of selfishness is more nuanced than the term might suggest. He recognizes that we don’t care only about ourselves, but he insists that we care most about ourselves, followed by our close friends and relations, with mere acquaintances and strangers coming in last.[9] Nonetheless, the core of Hume’s account makes no appeal to different conceptions of the good. The only issue is to what extent we prefer our own good, and that of our close relations, over the good of others – not what disputes we might have over which things are indeed good.

Conditions 8 and 9 are similarly absent from Hume’s account. He does make allowances for a general tendency to choose our short-term good over our long-term good in explaining the need for government to enforce the rules of justice.[10] But this falls far short of the range of limits canvased under Condition 7, limits Rawls would later group under the label “the burdens of judgment.”[11] And Hume shows no interest in having the rules of justice accommodate this kind of philosophical disagreement, as we can see from his impatience with moral appeals based on religion.[12]

Rawls’s protestations to the contrary, it shouldn’t be surprising that his account differs dramatically from Hume’s. First, Hume views justice primarily as a system of rules assigning property rights.[13] Second, Hume’s account of the circumstances of justice is, in the first instance, an exercise in speculative anthropology.[14] In the conclusion of Book 3 of the Treatise, Hume describes his discussion of justice and the other virtues as analogous to the work of an anatomist.[15] And in both the Treatise and the Enquiry he is concerned with the “origins” of justice – that is, under what conditions do rules of justice actually arise in human societies.[16] This is not to say that there is no normative element in Hume’s treatment of justice – after all, he categorizes justice as an artificial virtue.[17] And, given his view of moral psychology, there can be obligations of justice only if there is some deeper human motive served by justice.[18] Thus, for Hume, showing the anthropological origins of justice is a precondition for establishing its normative bona fides.

Rawls, in contrast, is concerned primarily with the normative project of identifying and defending the correct principles of justice. For Rawls, these are not, in the first instance, the circumstances under which we find people appealing to justice. Rather they are the circumstances to which the concept of justice applies. And because Rawls’s theory of moral psychology is more Kantian than Humean, he does not assume that normative concepts can apply only where they are useful or where they satisfy other non-moral motives.

Nonetheless, Rawls is able to incorporate much from Hume’s account because of his view of society as a cooperative scheme for mutual advantage and of justice as the virtue governing the distribution of those advantages. Justice only applies when there are social advantages to be distributed, and there will typically be such advantages only when society is useful, in Hume’s sense. Taken together then, this Rawlsian/Humean view represents the traditional account of the circumstances of justice.

[1] Treatise 3.2.2.2-3 [Book#.Part#.Section#.Paragraph#]

[2] Treatise 3.2.2.16

[3] Hume, Enquiry Concerning the Principles of Morals, 3.1.12 [Section#.Part#.Paragraph#]

[4] Enquiry 3.1.18

[5] Rawls 1999, p. 110

[6] Rawls 1999, p. 110

[7] Treatise 3.2.2.7 It is noteworthy that this concern doesn’t reappear in the Enquiry. This may be due to the specific scope of the argument there, which only requires an illustration of justice’s dependence on circumstance.

[8] But talk of a “definite geographic territory” suggests something a bit more heavy duty, e.g. relating to Rawls’s treatment of justice for a closed society. I don’t explore that complication here.

[9] Treatise 3.2.2.13 and 3.3.3.2

[10] See Treatise sections 3.2.6 and 3.2.7

[11] Rawls 1993, p. 54-8 and 2001, p. 35-7

[12] Enquiry 9.3

[13] This is evident from the central role possession and property play in Hume’s account. See, e.g. Enquiry 3.8 where he counts opening granaries in an emergency as a suspension of justice, rather than an exercise of it.

[14] Hubin (1979) interprets Hume as engaged in a descriptive/historical characterization of the circumstances of justice in the Treatise but as engaged in a more normative treatment of the subject in the second Enquiry. (See his p. 5). I find Hume’s appeal to the ‘utility’ of justice in the Enquiry to be ambiguous between these two readings. But either way, as Hubin points out, Rawls also rejects a normative account of justice that grounds it in utility in this way.

[15] Treatise 3.3.6.6; however, see Krause 2008, p. 225, note 52 for a reminder not to take this passage to mean Hume has no moral aims in the Treatise.

[16] See, e.g. Treatise 3.2.2.11 and Enquiry 3.12

[17] Thanks to Sharon Krause for this point.

[18] Treatise 3.2.1.6 “that no action can be virtuous, or morally good, unless there be in human nature some motive to produce it, distinct from the sense of its morality”

Works Cited

Hubin, D. Clayton. 1979. “The Scope of Justice.” Philosophy & Public Affairs 9(1):3-24.

Hume, David. 1998. An Enquiry Concerning the Principles of Morals. Edited by Tom L. Beauchamp. Oxford: Oxford University Press.

Hume, David. 2000. A Treatise of Human Nature. Edited by David Fate Norton and Mary J. Norton. Oxford: Oxford University Press.

Krause, Sharon. 2008. Civil Passions. Princeton, NJ: Princeton University Press.

Rawls, John. 1993. Political Liberalism. Cambridge, MA: Harvard University Press.

Rawls, John. 1999. A Theory of Justice, rev. ed. Cambridge, MA: Harvard University Press.

Rawls, John. 2001. Justice as Fairness: A Restatement. Edited by Erin Kelly. Cambridge, MA: Harvard University Press.

20 thoughts on “The Circumstances of Justice: 2. “The ‘Circumstances of Justice’ in Hume and Rawls”

  1. Pingback: The Circumstances of Justice: 1. The Idea of “Circumstances of Justice” | Policy of Truth

  2. I haven’t read Hume in a while, and don’t have easy access to Hume’s works where I currently am, so I can’t speak to textual details, but your account of Hume seems plausible enough to me as exegesis. What puzzles me (has always puzzled me) is why anyone would find Hume’s account of justice a plausible starting place or springboard for his own account of justice. Even apart from your argument about the implausibility of Rawls’s having added anything to Hume in his (Rawls’s) account of the circumstances of justice, I don’t quite get why Rawls or anyone else would start with Hume in the first place. I raise this issue not because it bears directly on your project (it doesn’t) but because I find Hume’s account of justice so perplexing that I wonder if I’m misunderstanding it. So I’m just looking for some preliminary clarifications about what’s going on in Hume before I go on to think about the Hume-Rawls connection.

    For me, the puzzles arise in the summary you give in the second full paragraph after the heading. Here are four.

    1. Why think that extremes of abundance would make justice useless? Imagine two affluent people with access to every conceivable material good. Couldn’t the one person insult the other, or lie to him? If so, wouldn’t the insult or dishonesty be an act of injustice? I suppose that we could re-describe the two peoples’ situation as a matter of affluence in everything but mutual respect, and then describe them as suffering from “a scarcity of mutual respect.” But that seems contrived, and I’m not even sure it’s what Hume would want to say. But if it isn’t what he wants to say, I’m baffled as to how he handles such cases.

    Put differently, the “scarcity” condition either seems irrelevant or ad hoc. Irrelevant: you can have injustice without material scarcity. Ad hoc: it seems ad hoc to re-describe paradigmatic cases of injustice so that they’re artificially (and implausibly) understood to involve a “scarcity” of some wanted quality.

    2. I guess it’s more plausible to think that extreme necessity makes justice useless, but even there, the thesis needs clarification (on Hume’s part). Suppose that Jean Valjean steals out of necessity. It’s not obvious that Valjean’s being under necessity puts him beyond the scope of justice altogether. The theft may have been excusable, but he might owe compensation to the victims of his theft. If so, necessity would not only turn out to be compatible with justice, but also turn out to be compatible with a convention connected to justice (compensation for takings being the relevant convention). That seems to me a counter-example to Hume’s view, but I could imagine a Humean saying that it’s an instance rather than a counter-example: Valjean’s necessity is compatible with justice and convention because it’s a (relatively) isolated case of necessity, and the necessity involved is itself relatively mild (as necessity goes).

    So change the example. Imagine a refugee camp. It’s inarguable that people in a refugee camp live under conditions of severe necessity, but it’s far from obvious that this entails that justice ceases to apply to refugees in a camp. The norms of justice could apply to the residents of a refugee camp, but be relativized to the special circumstances involved. I know I keep bringing this up, but the Bedouin encampments around me (here in Palestine) seem to combine extreme necessity with a sense of justice. Does Hume really want to say that there’s no such thing as Bedouin justice? (Here’s a website describing the Jahalin Bedouin community in the Jerusalem Governorate.)

    Perhaps Hume thinks that even this isn’t the degree or severity of necessity required to make justice useless. In that case, however, I think we’re forced to say that his account is really imprecise and unclear. Surely he needs some sort of answer to the question: How much necessity is required to make justice useless? Prima facie, justice seems perfectly compatible with a great deal of necessity.

    I’m pressing this (potentially idiosyncratic) point because I’ve encountered both Hegelian conservatives and Randian Objectivists who want to claim that justice fails to apply to “non-civilized people” whose material circumstances fall below “civilized” standards. The claim seems to be that such people live “animalistic” lives to which justice is inapplicable (as it’s inapplicable to the lives of non-human animals). Only once we achieve a certain material abundance do our lives become “genuinely human,” so that the circumstances of justice are met. Hume’s theory seems to be operating in the same moral neighborhood as the Hegelians and Randians of my acquaintance. But if so, it’s a puzzle to me why political liberals would find Hume’s account of justice attractive.

    3. I find it completely bizarre to say that justice would fail to apply to circumstances of perfect rapaciousness and malice. Why wouldn’t it apply to such circumstances by condemning perfectly rapacious and malicious people as perfectly unjust?

    4. It seems equally bizarre to insist that rough equality is a necessary condition for the application of justice. Children and adults are neither equal nor roughly equal. Does Hume want to say that child abuse is not an injustice? Or consider extreme cases of domination, e.g., one party, A, that so dominates another party, B, as to render B on obviously unequal terms with A. Does Hume want to say that A’s domination/mistreatment of B is not a matter of justice simply because B is no longer able to resist A? His view seems to imply it, but the implication seems hopelessly implausible.

    Is Hume just willing to bite all of these bullets, or am I drastically misunderstanding him?

    Note: My WiFi has been very unreliable these past few days (and threatens to stay that way), so please interpret any “silences” from me accordingly.

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    • Another example of (2) above, plucked from recent headlines: doesn’t Hume’s view of justice entail the impossibility of making any judgments regarding the justice of people’s actions in contemporary Venezuela? Almost everyone there is under extreme duress or necessity, from which it follows (on his view) that justice is rendered useless. But this ignores two possibilities: that justice can apply to conditions of extreme necessity, and that conventions can arise that concern just conduct under such conditions. I realize I’m just repeating myself here, but to my mind, thinking about Hume’s view by way of a real-life example clarifies what’s wrong with it, or at least clarifies the price of holding it:

      http://www.nytimes.com/2016/06/20/world/americas/venezuelans-ransack-stores-as-hunger-stalks-crumbling-nation.html

      (ht Kate Herrick for the article)

      (PS: WiFi still really spotty here, as is my access to PoT….Have stuff to say on the Hume-Rawls connection, but hard to post with WiFi cutting in and out every three minutes…)

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    • These are good points, Irfan. They are, I think, connected to my point below. If one of our big reasons for setting up regimes of conventional rules of obligation/claim is simply that they would realize a certain relationship with others, then it seems plausible that the circumstances for some considerations of justice being present are universal (as long as human nature is held constant or some such). If such a reason of justice needs further reasons – circumstances of cooperation being both possible and necessary – in order to justify setting up a conventional regime of obligation/claim – that is a substantive and plausible thesis. But unless the domain of justice is artificially confined to the domain of reasons that are partly a function of conventional rules for cooperation, such circumstances are not the circumstances for any and all considerations of justice to have any normative sway. They are simply the circumstances for having sufficient reason, all things considered, to set up a conventional regime of obligation/claim type rules, abide by them, etc.

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    • 1. I think this is right, though I’m not sure I have any objections to the “contrived” reading you offer. I’ll have more to say on this in (I think) the next installment, though I’ll be talking about it in terms of a broader sense of what counts as a resource (and thus what counts as a scarcity of resources).

      2. Let me address the Valjean example since it’s simpler. While Valjean himself may face severe necessity, he and his fellow Parisians are not living under the kind of extreme scarcity that Hume is talking about. The idea of moderate scarcity is that there is enough that, if we come to a cooperative arrangement, there will be enough for each of us to avoid e.g. starvation. Extreme scarcity is the condition where no such cooperative arrangement is possible – that is, no cooperative arrangement that will allow each of us to survive and/or satisfy our basic needs.

      I’ll say less about the refugee camp, only because I don’t want to speak too lightly or too hastily about an important subject. The first thing to note is that there is a complication here never adequately addressed by Rawls (I’m not sure if it’s ever addressed by Hume). We can speak of the internal conditions of the camp (as I presume you are), in which case I think it is a very important case for thinking about the circumstances of justice. But we can also take a larger view which makes it much more analogous to the Valjean situation. Treating the actions of the outside forces enforcing the borders of the camps as fixed background conditions, the camp’s residents may be under conditions of extreme scarcity. But the larger social set of the refugees and the surrounding society and world community that they’re part of (and governed by), it seems evident enough that there is something more like moderate scarcity.

      3. I think Hume is thinking not of an individual character, but of the capacities of human moral psychology. If human beings were naturally rapacious and malicious, then justice wouldn’t be a human virtue. I guess I think something like this is true; at any rate, it doesn’t sound crazy.

      4. This is another important point, and I think there’s some ambiguity in the Hume interpretation here. Taking the cited passages in isolation, I read Hume as making a kind of philosopher’s sci-fi hypothetical. If there were some group of creatures living alongside us who were utterly incapable of forcing us to feel their displeasure at our actions, says Hume, any good treatment of them would be effectively charity, not justice. In reality, no matter how week or well-dominated a group of people are, they are still capable of reprisal under the right conditions. Even an unsuccessful slave revolt can leave many masters dead, and even children can kill an adult in his/her sleep.

      But some feminist critics have suggested that Hume quite obviously means to be referring to women in these passages. On that reading it seems he’d be perfectly willing to bite your bullets.

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      • Regarding Irfan’s #1 (and Derek’s response): suppose, as seems intuitively right, that my gratuitously insulting you is unjust. Plausibly, this is due to this sort of action being radically at odds with being in a certain “cooperative” relationship with others (I’ll leave things at this level of generality for now) – and due to my having strong reason to instantiate this relationship whenever I deal with other people. However implausible in the details, take this story as a model to make a point. The point is this: though, on this model, justice is essentially about cooperation (not, say, charity or other important subjects or topics of moral action), it would not be about distributions of benefits and costs that might be created by our interaction (the model here would explain and justify, not simply assert, that this is so and that any attempt to re-describe in term of distributions of costs and benefits created would be contrived).

        Consider as well individual-level reciprocity, which is paradigmatically a matter of justice (and also, of course, a matter of cooperation). If you bestow a benefit on me and, for no good reason, fail to reciprocate (and in a roughly proportional way), I’m an unjust ass. But this is no case of mis-distributing the benefits and costs created by the interaction. We can, if we want, construe what is happening in terms of a certain pattern of benefits and bestowings of benefit (that’s just what ‘proportional reciprocity’ gets at) – and we can call this a matter of “how benefits are distributed” without doing brutal violence to the English language. But it seems that we have two different things here: a kind of justice at the individual, dyadic level and, with the appropriate-distribution-of-resources stuff, a kind of justice at the level of the relation between individuals and the cooperative schemes or endeavors that they are a part of.

        These are bits of evidence for agreeing with Hume and Rawls that justice essentially concerns cooperation (not charity or other ethical ends) but not necessarily the distribution of benefits and costs created by cooperation.

        As far as Irfan’s actual point goes, the model here would suggest that how much resources of any sort are around is irrelevant to whether one is doing one’s part in trying to realize a trusting, cooperative relationship with another person. One is not if one simply insults another person for no good reason. One is if one responds to that insult by demanding an apology. (The existence and strength of any public understanding of who owes whom what is similarly impacted by the gratuitous insulter and the apology-demanding victim. And one’s participation in this does raise issues of justice as it applies to cooperative schemes – and, ultimately, what the appropriate distributions of benefits and costs created are – even if the point of the cooperative scheme were only to codify and enforce certain individual-to-individual justice relationships, as on strict natural-rights-type libertarian views.)

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        • Michael,

          I think we’re agreeing here, but I want to defer discussion of the insult case until Derek gets farther into his paper, since I think he wants to say that the scenario I described really does involve something analogous to a “scarcity of mutual respect.”

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      • Derek,

        Well, that certainly makes more sense of Hume than I had made of Hume before I read it. Am still not convinced, but I won’t belabor this (too much), because it’s not really central to your argument. Wi-Fi permitting, I’ll post something on Rawls-Hume later today. (Actually have a thought on Plato, too, but not sure I’ll get to it.)

        Some very quick comments on what you’ve said, however, bracketing (1) for a later discussion.

        On (2), I think you’re right to say that it matters whether we look at a case of duress in micro- or macro-perspective. Micro cases of extreme duress will look like moderate scarcity if seen in macro-perspective, and allow Hume to say that justice applies. I just wonder whether Hume has a non-arbitrary way of insisting on that perspective against the person who insists on the reverse.

        On (3), I think there’s an ambiguity in the idea of people’s being “naturally rapacious.” On a weaker interpretation, we might be more inclined toward rapacity than we currently think we are. On a stronger interpretation, we might literally have a kind of rapacious genotype that made us more similar to lions, tigers, or baboons than to what we think we are. The weaker interpretation is more plausible, the stronger one more outlandish, but I have a feeling Hume may well be intending the stronger one.

        On the weaker interpretation, however, natural rapacity wouldn’t entail what Hume thinks it does. If I realize that I have more of an inclination toward rapacity than I thought I did, that wouldn’t mean that justice ceases to apply; it means that I have to apply justice accordingly. One option is that I have to work harder to be just; another is that the bar for just behavior has to be pushed down a bit to accommodate natural facts about me. But this latter discovery would be analogous to Freud’s discovery that we’re more sexual (and aggressive) than we’d previously thought we were. Arguably, Freud’s discoveries (if true) didn’t entail that morality ceased to apply; they entailed revisions to the content of morality. And the same could be said, mutatis mutandis, of Hume on justice.

        On (4), I guess I just don’t see it. “Chuckie” scenarios aside, surely Hume has to admit that adults are capable of abusing infants, and that infants are incapable of resistance (unless he wants to construe crying as resistance!). Maybe he wants to think of infant-adult relations as exemplifing charity rather than justice, but that’s a more radical view than you’d expect out of a conservative like Hume. I haven’t read the feminist literature on Hume, but it certainly puts Annette Baier’s view of Hume as “women’s moral theorist” in interesting perspective.

        Bottom line. I think Hume conflates three distinct views that need to be kept distinct. I’m using “circumstances of justice” as a shorthand for Hume’s account of those circumstances.

        a) If the “circumstances of justice” don’t obtain, justice ceases to apply.

        b) If the “circumstances of justice” don’t obtain, our conventional conception of justice ceases to apply, but a radically revisionary one does (or may) apply.

        c) In fact, “justice” has a disjunctive structure. One set of norms of justice applies to cases where the “circumstances of justice” obtain, but another, radically different set applies to “exotic” cases where the “circumstances of justice” don’t obtain (perhaps leaving aside some cases that are so radically extreme or “exotic” that they’re incapable of assimilation to any conception of justice). The concept of “justice” integrates both disjuncts (or the norms involved in both disjuncts) into a coherent account. We just typically focus on the disjunct where the “circumstances of justice” apply, because the circumstances typically do obtain. But the cases where the “circumstances of justice” don’t obtain are not cases where justice ceases to apply; they’re cases where justice applies in some complex-revisionary way that we haven’t yet figured out or unpacked. That “unpacked” material is part of our concept of justice, even if it isn’t yet part of our conception of it. But no matter how you slice it, justice is pretty close to indefeasible, in or out of the “circumstances of justice.”

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  3. [I am not caught up with the comments threads on Part I, so for now I’ll just make the following brief comment on Part II. Also, Irfan’s comment above posted before I finished mine, so I have not read his above comment.]

    I take it Hume would say that there are no reasons of justice that would justify conventions of justice. But Hume also seems to hold that all such antecedent reasons are reasons of utility. Is this right? Why hold this? Why not hold that conventions of justice are justified, in some important part, by natural, moral reasons (reasons of natural virtue)? Depending on what these reasons are, we might or might not be tempted to call such reasons basic reasons of justice (if there is a natural, moral virtue of reciprocity, this would be a good candidate for counting as a “natural” virtue or reason of justice). I find the predominant or exclusive appeal to utility-type reasons in justifying the conventions of justice puzzling (and I think Rawls would, too).

    One might think that there cannot be any basic moral reasons to follow rules (with a certain range of content, that function to or tend to achieve certain outcomes beyond the special “outcomes” that are compliance-constituted) – and for that reason hold that reasons to follow existing or proposed rules have to be reasons of utility. In which case not only (reasons of) justice but (reasons of) interpersonal moral obligation/claim of all sorts is convention-dependent (with the conventions justified entirely by reference to utility-type reasons). Though I am sympathetic to the idea that reasons to follow specific rules of obligation/claim are convention-dependent, I don’t see why general moral reasons to follow rules (with some particular sort of content) can be ruled out as reasons to follow specific rules of obligation/claim. (Of course, such reasons would be particularly salient reasons to follow the relevant sorts of particular, conventional rules!)

    Though I’m not sure that these kinds of considerations are directly relevant to what the circumstances of justice are (or at least the circumstances for the particular conventional bits of justice that Hume is concerned with are), they do, I think, point to a profound difference in normative structure in “justifying justice” (and perhaps specific, actionable regimes of moral obligation/claim more generally). I take it that Rawls would deny that only utility-type reasons go into justifying the adoption of particular, conventional regimes of justice.

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    • “But Hume also seems to hold that all such antecedent reasons are reasons of utility. Is this right?”

      I’m not sure it is right. The role of utility in Hume’s moral theory is one of those perennially disputed scholarly questions. I don’t know the literature, but a friend of mine, Philip Reed (at Canisius) works on the issue (he gave a paper on it at FEC back in 2010). If I remember correctly, Philip’s view is that virtue is not reducible to utility for Hume.

      https://chroniclevitae.com/people/260286-philip-reed/profile

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      • Thanks, Irfan. That is helpful. As I remember, part of Hume’s view is that there are both natural and artificial virtues. So my question might boil down to this: on his view, is the artificial virtue of justice grounded in natural virtues as well as in considerations of utility (and if so do any of these natural virtues count as virtues of justice – and if no why not)? Perhaps the narrowly consequentialist smell of (some interpretations of) Hume’s justification of (the artificial virtue of) justice does not reflect the best (or even the standard?) interpretation of Hume.

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  4. I’ve been traveling, and hence not keeping up with reading these posts, let alone responding. But my first thoughts on reading this (only exacerbated by Irfan’s comments) are: 1) this is all outrageously complicated; 2) you (Derek) are right to emphasize the role that moral psychological assumptions and theories play in sifting through these complications; 3) we need to figure out, at least for purposes of exegesis and assessment of the various figures under discussion, what the scope of the word ‘justice’ is supposed to be. I’m with Irfan in thinking that there are intuitively considerations of justice that would apply in conditions of material abundance, but I’m not sure whether Hume is just guilty of an egregious oversight here or whether he’s using the word ‘justice’ in a somewhat more limited way that would make its restriction to the distribution of material goods more or less trivial. Whatever else one wants to say about Hume, he’s not generally an insensitive psychologist; though it’s probably been longer since I’ve read him than it has since Irfan read him, from what I recall he isn’t likely to have overlooked the psycho-social dynamics of insult and honesty. Do these concerns fall outside the scope of justice for him largely as a terminological matter? I would be inclined to resist such a restricted view of justice, but it matters whether we’re just disagreeing about terms (though I don’t think that would in itself be trivial) or more directly about substance.

    I have a number of other confused thoughts, but here’s just one, following up my bit about Plato in the Republic from last time. Plato seems to offer something at least broadly similar to an account of ‘the circumstances of justice.’ But one thing that distinguishes the two rival accounts he presents — Glaucon’s and Socrates’ — is that one begins with a subjectivist conception of human motivation and the good while the other begins with a fundamentally objective conception. Glaucon represents human beings as the subjects of appetites whose power to satisfy those appetites is limited in part by the power of other human beings to prevent that satisfaction; it’s more or less taken for granted that what is good for each is to satisfy those appetites, and justice is presented as a solution to the problem posed by each individual’s vulnerability to the power of others. Socrates represents human beings as the subjects of objective needs whose ability to satisfy those needs is dependent on the co-operation of others; he emphasizes that we can come to have appetites for things that are not genuinely good for us, and justice is presented as a solution to the problem(s) of enabling each to satisfy his own needs and of ensuring that we desire what is genuinely good for us. Leaving aside the details of what Plato via Socrates seems to think is genuinely just, what we get here is an illustration of the point that our thinking about justice will be shaped in good part by our thinking about human psychology. Granted that justice has to do with how people treat one another, the details beyond that minimal point will depend on what we think is good for people, why it is good, and what will satisfy them.

    Rawls is an interesting case precisely because his professed theory of the good is thoroughly subjectivist, but he builds some substantive moral considerations into his account of ordinary human psychology. Unlike Hume and Glaucon, Rawls seems to think that ordinary human beings have at least some desires that are neither narrowly self-regarding nor grounded in a limited sort of sympathetic altruism, but rooted instead in a conception of the self as a rational agent, and hence extend to respect for all rational agents as such. As I read him, this sort of desire is crucial for the success of the overall argument of ToJ; though we might have to read the book backwards to see it, the whole reason why the Original Position is the right way to begin thinking about justice is that it models the way that we will think about ourselves and each other when we think about ourselves as what we really are, viz. reflective, rational agents. This part of Rawls plainly owes a lot to Kant, and to the extent that Derek wants to highlight how important it is to everything that Rawls does, I think that’s exactly right (in fact, one thought I had upon reading ToJ straight through was that Rawls begins by pretending to be more or less Humean and then reveals that all of that earlier stuff depends on a deeply Kantian view of the self and the good — an oversimplification, no doubt, but one that I still think reflects a real feature of the book).

    But here’s what I want to ask: if we take this Kantian part of Rawls seriously, and I mean really seriously, then what, ultimately, is left of his self-avowed subjectivism? Rawls pretty clearly doesn’t want (at least in ToJ; what he wants to say later is, so far as I can see, anybody’s guess) to say that the kind of desire to express one’s nature as a rational agent that lies at the center of his entire theory is just a sheerly contingent desire that any given human being could take or leave as he pleases; but he also doesn’t seem to want to say that we really are essentially and by nature rational beings, so that anyone who fails to cultivate a desire to express that rational nature thereby fails as a human being quite independently of whatever his given motivations happen to be. Otherwise put, I can’t see how Rawls’ account can avoid embracing the kind of objectivism about human nature and the human good that Plato puts in the mouth of Socrates (with massive differences, of course) or collapsing into the kind of subjectivism that Hume so unabashedly endorses. But if the latter is the case, then the best Rawls can say is that people tend to have such-and-such desires that would be satisfied by taking such-and-such a perspective, and that turns out to be a highly dubious empirical claim nowhere near strong enough to support the theory of justice that he offers us. If, instead, the former is the case, then I’m left wondering why we are supposed to get mixed up in this whole baroque contractualist business at all instead of proceeding directly to the substantive conclusions that Rawls wants to draw, but on the basis of a substantive and objective conception of the human good.

    I suppose in a way all I’m doing here is taking a long time to articulate a well worn Aristotelian criticism of Kantian ethics. But whether we’re interpreting Rawls or just trying to think about justice, the basic question is: are we bringing an objective and substantive conception of the good with us to our theorizing about justice, or not? Among the many of Hume’s virtues is that his answer to this question is clear. Rawls’, not so much.

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    • Self-correction: Rawls need not think, any more than Hume, that the motivations central to the subjective dimension of the circumstances of justice are the sorts that we are free to abandon if we please; the contingency of the motives is consistent with their being deep, pervasive, and virtually impossible to eliminate. The trouble for Rawls is that the motivation that Rawls relies on — the desire to express one’s nature as a rational agent — doesn’t seem, as an empirical matter, to be sufficiently deep, pervasive, and strong to do the kind of work that he needs it to do if his theory of justice is supposed to be grounded in a subjectivist theory of the good. Of course, as Derek helpfully points out, Rawls is not trying to do the same kind of anthropological theorizing that Hume is, but if ultimately one of the most important reasons why we are supposed to see justice as he does is that his theory best answers to or satisfies this dimension of ourselves, then it would be no small problem if many people in many times and places either lack that dimension or do not particularly care about it, or at least the part of it that is supposed to be best expressed by acting on principles of the sort that would be chosen in the OP.

      Alright, back to driving all day.

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  5. I’m on the run today–I mean I’m traveling today–so substantive comments will have to wait until tomorrow, but by chance I just happened on a paper in a back issue of Reason Papers on Hume’s theory of justice. It’s Nicholas Capaldi, “Hume’s Account of Property” (1990) [PDF, about 26 pages]. In a somewhat humorous irony, Capaldi argues that Hume’s conventionalism about justice and property rights entails the falsity of…Rawlsian schemes of redistribution! I’m guessing that Capaldi would take Derek’s thesis to be nearly self-evident, except from the reverse direction: Hume is thoroughly right, and Rawls is thoroughly wrong, so there’s no way Rawls could be a Humean.

    Whatever one thinks of that, Capaldi takes Hume’s conventionalism to what strikes me as a reductio-level extreme, colliding directly with the criticisms I made in my comments above (not that I mean this to dispose of anything in Derek’s paper). Incidentally, Capaldi’s paper is part of a whole issue devoted to Hume’s Treatise. (You have to scroll down to volume 15, 1990). For whatever it’s worth, there’s some interesting Hume scholarship scattered throughout RP–and if RP‘s website had a search function worthy of the name, you might be able to find it, too. But a quick scroll down the archive page (link just above) will probably give you a sense of it.

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  6. My last couple of comments really nibbled at the fringes of the paper’s argument, so here’s a comment that bears more directly on the argument of section 2 of the paper.

    Rawls wants to say that his account of the circumstances of justices adds “nothing essential” to Hume’s account. You (Derek) want to say that Rawls’s claim is “implausible” and that the two accounts are “dramatically” different. Not having a dog in the fight, I’d say that matters are at a stalemate here. Rawls has certainly departed some from Hume’s account, but it’s not clear what he takes as “essential” adherence or “essential” departure from Hume. Since we don’t know what he takes that to mean, it’s hard to evaluate your claims about the “implausibility” of his. But even if we forget authorial intention and just rely on an objective conception of essential similarity and difference (which would itself need to be spelled out), I think it’s a stretch to say that Rawls’s account differs “dramatically” from Hume’s.

    You yourself admit that there is no dispute over five of the nine Humean conditions: (1), (2), (3), (5), and (6). Rawls might legalistically respond that if you grant that, you’ve already conceded his case. Maybe all he needs is agreement concerning more than half the conditions.

    A passing thought from a different field: it’s a commonplace of psychiatric diagnosis that a psychiatric condition can paradigmatically involve, say, nine features, five of which may be exemplified in a bona fide case of the condition, and four of which may be entirely missing, or present in idiosyncratic forms (cf. DSM-5). This approach may or may not be right (and the analogy between psychiatric diagnosis and historical borrowing is admittedly distant), but it illustrates the complexities of the kind of case you want to make. In other words, a lot turns on methodological issues that neither you nor Rawls discuss, e.g., what counts as essential similarity and difference (or essential adding and subtracting) when it comes to borrowing from a classic work in the history of philosophy?

    Of the remaining conditions, two involve difference and two involve absence. In other words, Rawls’s conditions (4) and (7) are different from Hume’s account, and Rawls’s conditions (8) and (9) are absent from it.

    When it comes to difference, however, Rawls might respond in one of two ways. Either he might say that sheer difference is consistent with the “essentially Humean” character of his account, or he might say that the difference in question is just a matter of emphasis that Hume could in principle have agreed with. I think you need to say more to block these moves (NB: I am just commenting on this section, so you may say more later; I read the whole paper several months ago, but have not read the whole paper since, and don’t remember the details).

    When it comes to conditions absent from Hume, Rawls might respond in one of two ways. Either he might say that as long as conditions (8) and (9) don’t literally contradict Hume’s account, there’s no need to concede the essentially Humean character of an account that includes them. We couldn’t (after all) necessarily expect Hume’s own account to be comprehensive, so it’s unreasonable to demand that an “essentially” Humean account add nothing to what Hume actually said. No account works like that. Or he might say that even if conditions (8) and (9) do contradict Hume’s account, they capture features of any plausible account, so that they function as Humean amendments to what Hume said (or even just plain old amendments to what Hume said).

    Having said all this, the fact is that I (sort of) agree with the spirit of your argument, just not the details. I find it puzzling why Rawls would lean so heavily on Hume, but in my case that is more because I find Hume implausible than because I find it implausible that Rawls’s account is Humean. I guess my basic objection here is that given the way Rawls puts things, he’s given himself plenty of room to maneuver, and that suggests that he’s got room to maneuver around your objections.

    My hunch is that what Rawls wants to borrow from Hume is Hume’s conventionalism about property. In other words, what Rawls find attractive about Hume is Hume’s denial of the legitimacy of natural property rights of the Lockean (and ultimately, Nozickian*) variety. Granted, Rawls could have gotten that out of Kant as well, but arguably, it is more clearly put in Hume. But that’s just a speculation, and nothing much turns on it.

    *The first edition of A Theory of Justice came out in 1971, three years before Anarchy, State, and Utopia, but Nozick was a colleague of Rawls’s, and Rawls must surely have been familiar with Nozick’s neo-Lockean views about property. Like Theory of Justice, Nozick’s “On the Randian Argument” was published in 1971. I don’t think Nozick credits Rawls with any discussions on the subject of property rights, but I can’t imagine that their views were a mystery to one another. Unfortunately, I don’t have Rawls’s Lectures on the History of Political Philosophy with me, but there’s a lecture in it on Locke and one on Hume, so it might be worth consulting on this issue.

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    • Irfan, I suspect that Rawls’ emphasis on interests of the self rather than in the self (“advantage”) and the *generic* plans that the self makes could be added to the Humean conception without adding much to the space of logical or plausible downstream results. However, Rawls takes the most important plans to be life-plans that involve conceptions of the good or of what a good life is. It seems pretty important that the self regards these conceptions of the good as deserving recognition and as giving rise to claims that are to be respected. As well as the distinctiveness of the topic here, this involves explicitly introducing the *belief in* some sort of antecedent reasons of virtue or morality (though not necessarily this belief being true). This, in itself, strikes me as a difference that might significantly affect that logical and plausibility space of downstream results. But, in addition to this, we get Rawls’ last condition of the diversity of views of what the good life is (e.g., a diversity of religious views). This combined with the idea that each person believes that her particular outlook and way of life deserves recognition and gives rise to claims that are to be respected by others (presumably, all others, not just those who share her outlook) seems like the right thing to have dramatic effect on the downstream logical and plausibility space of answers to questions of justice. This goes double if not only the belief, but the belief being true, is part of the circumstances of justice (or perhaps just part of relevant background normative conditions). I assume that Derek will be making a case something along these lines in future installments.

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  7. Derek, in your second-to-last paragraph here you seem to be endorsing the following interpretation of Hume (and perhaps any broadly Humean position according to which normative reasons are grounded in desires): normative reasons (and in particular normative reasons of justice) are grounded in motives or desires for states of affairs that are not integral to morality. I’ve been questioning whether this is a good position for Hume (or at any rate a Humean) to have, and according to Irfan there is not a settled interpretation of Hume on this issue, but I thought it worthwhile to point out that you explicitly endorse this interpretation of Hume (and perhaps a related interpretation of what a Humean position on normativity comes to).

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  8. Pingback: The Circumstances of Justice: 3. The Significance of What Rawls Added | Policy of Truth

  9. Pingback: Shameless Plug: Free Range Philosophers | Policy of Truth

  10. Pingback: The Circumstances of Justice: 4. A Revised Account of the Circumstances of Justice | Policy of Truth

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