Liberty, neutrality, equity

Justice as Impartiality
January 3, 1997

In the first of the four projected volumes in his Treatise on Social Justice, Brian Barry argued that justice expresses an impartial concern for others, unconditional upon dependence on them. Here he elaborates that concern's liberal implications.

Part one restates Barry's opposition to mutual advantage theories of justice and to identifying the requirements of impartiality via veil of ignorance arguments. He argues, invoking Thomas Scanlon's contractualism, they are better established by asking which principles of justice are incapable of "reasonable rejection" as "the basis for informed, unforced general agreement". He defends a modest liberalism, affirming specific liberties, while abandoning other liberal maxims, and conceding justice leaves under-determined many political decisions. These, allegedly, are amenable only to purely procedural solutions, giving priority to majority will, not individual freedom.

Thus, Barry argues that inequalities in religious and sexual freedom, despite majority approval, are unjust. But he rejects arguments from a harm principle, and relies instead on the claim that such inequalities could be rejected. In other important cases - environmental protection, road safety and abortion - he claims no such independent standard commands or condemns legislation. Women, he implies strikingly, cannot reject laws that protect the foetus rather than their reproductive freedom, provided they originate from a fair democratic procedure where individuals are permitted to advance their controversial conceptions of the good.

Such conceptions' role within political morality is addressed in part two. Barry defends a restricted form of neutrality, which permits their relevance to voting, while denying their place in constitutional design. Appealing to scepticism, rather than to welfarism or autonomy, he claims that constitutional frameworks which privilege particular accounts of the good can be rejected because those accounts fail the appropriate epistemological threshold.

In part three Barry pre-empts misconceived criticisms of justice impartially. Distinguishing between first-order and second-order impartiality, he argues familiar objections to act utilitarianism cannot be extended to his view. And, while endorsing the importance of recent feminist critiques of familial injustice, he rejects any criticism based on an opposition between the so-called ethics of care and justice.

Justice as Impartiality moves fluently from abstract argument to practical application, and is characteristically clear and occasionally caustic. In reading Barry's constructive suggestions, and his commentary on others' work, both teachers and students of political theory will find much to learn and criticise.

For example, two opposing objections confront the contractualist test. Some claim the test imposes no genuine restrictions on political argument, since principles of justice are capable of reasonable rejection only because they are unjust, rather than unjust because capable of reasonable rejection. It fails to ground our judgements about justice in some more basic moral idea, but merely re-expresses them. Contractualists respond that to reject principles an individual must cite their effects on her interests, rather than their immediate injustice, but in doing so invite the second objection. For others claim the test, construed nonvacuously, could then be satisfied by principles permitting wrongful acts, provided they were not against the interests of specific individuals.

Contractualists must therefore show how their view can escape emptiness without sacrificing plausibility. But his defence of majoritarianism suggests that Barry sometimes risks the first horn of this dilemma. Here he appears to defend such a procedure by claiming that it is "intrinsically fair" rather than by deriving its fairness from its immunity to reasonable rejection. Doubtless, however, more will be said about the problem in the next volume, where Barry promises to discuss the economic implications of impartial justice. Given the latest volume's many merits, waiting should pay dividends.

Andrew Williams is a research fellow in public philosophy, University of Warwick.

Justice as Impartiality: A Treatise on Social Justice, Volume Two

Author - Brian Barry
ISBN - 0 19 8913 2 and 829092 6
Publisher - Clarendon Press, Oxford
Price - £25.00 and £14.99
Pages - 315

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