1.1(3) (part 1, para. 1, line 3 of Derek Bowman’s “The Circumstances of Justice”
We owe (or are due) things from each other and there are general principles (of justice) that specify just what it is that we owe to each other. That the verb here is ‘specify’ suggests a normative, explanatory role: the general principles explain why each of us owes it to each other to refrain from PHI-ing, but not to refrain from PSI-ing (or perhaps why each of us owes it to each other to refrain from PHI-ing in certain circumstances but not others). However, one of several to-me controversial things that Rawls’ characterization of justice suggests is that these general principles do not do this work, but rather some slightly different work – the work of justifying the adoption (perhaps the public adoption) of a prescriptive norm (or a nested set of prescriptive norms with a certain structure). That might go something like this: each of us is to refrain from PHI-ing with respect to each other person (and all of us is to stand ready to enforce the prescription to refrain from PHI-ing by demanding that potential rule-breakers don’t break the rule and by punishing actual rule-breakers). On this second way in which the general principles might work, they do something like specify conclusive reasons to construct a particular social practice.
We need both sorts of guidance. We need to know what, more specifically, we owe to each other in respect of different types of actions or circumstances; and, for various reasons, we may need direction in properly publicly codifying/precisifying and enforcing some or all of these more-specific principles (and formulating and enforcing even more specific ones). I propose, then, that there are two different sorts of these general principles (that Rawls calls principles of justice): general principles that justify more specific principles of first-order action and principles that justify the public codification/precisification/formulation and enforcement of specific first-order principles.
Here’s a toy model of how this might go in the case of respecting the agency of persons, a particular respect in which we do this, and what is required to come to an appropriate agreement on (and enforce) specific public rules. Start with the very general principle of being appropriately allowing or respectful of the agency of other fully functional, adult human beings. This might justify the more-specific principle (and liberal ideal) of allowing others to act on their beliefs and plans, in a broad range of cases (just which cases would have to be filled in) even when their relevant instrumental beliefs are false or their values or ideals objectively suspect. But if we are to come to an explicit agreement on the content of such a principle and adequately incentivize compliance (perhaps even if we were ideally rational we would come to different formulations that make equal rational sense from our individual standpoints), we need some guidance regarding how to codify/precisify and enforce it. Presumably, what will be important here, in addition to achieving the ends at stake in the sorta-specific first-order rule or principle, will be what is required to have a readily-known, readily-understood, readily-enforced specific version of such a rule or principle. I take good laws to meet this sort of requirement, but informally-enforced moral principles of who owes whom what might work and be justified in the same way.
On the face of it, Rawls stresses the second sort of principle or reasons (that tell us what norms to codify and enforce). I think it is for this reason that Rawls is sometimes characterized as a “constructivist” about justice. But I think it would be a mistake to ignore the first sort of principle or reasons. Maybe Rawls does not; maybe he says things about this element but calls it something other than a principle of justice? In any case, we can, at one extreme, imagine a theorist who holds that these sorts of general principles (of justice) work with instrumental or circumstantial descriptive information to yield their appropriate applications in ranges of circumstances. For such a theorist, questions of codification and enforcement are not the important or foundational questions (of justice) and this is not a trivial stipulation regarding how to use our words (like ‘justice’). On the other hand, at the other extreme, we might imagine a version of Rawls who is a pure “constructivist,” holding that fundamental principles of justice, one and all, give us guidance in codification and enforcement (that, I suppose, would be their job). On this approach, even if it is part of justice that these rather than those sorts of general principles are to be codified/precisified and enforced, if we are concerned only with this element (and not at all about public codification/precisification and enforcement) then what we are concerned with is not justice (or at least not justice-proper). And this would not be meant to reflect mere linguistic stipulation about how to use ‘justice’.
I know this is (yet more) pretty fine-grained analysis of relevant background issues raised in the first paragraph of the first part of Derek’s paper (actually, the first sentence of this first paragraph; don’t wonder why a start reading things and never finish!). But does this seem correct and to get at fundamental distinctions for effectively approaching issues of who owes whom what and why (or justice)? (I’m not concerned, not here, with whether or not justice concerns what we owe each other generally or something more specific like what we owe each other with respect to the distribution of social advantages in society, with respect to being reliable reciprocater, etc. Whether or not justice is this broad, I am concerns with interpersonal obligations and correlative claims – what we owe each other, what this is, and what explains, justifies and provides content to these things.)