Wednesday, September 8, 2010
Joshua Kleinfeld and Jörg Schaub (Goethe University Frankfurt - Cluster of Excellence Normative Orders and Goethe University Frankfurt - Cluster of Excellence Normative Orders) have posted The Place of Redressive Justice in the Concept of Justice on SSRN. Here is the abstract:
This paper aims to recover a place in the contemporary theory of justice for the work of courts. It argues that the claims of justice, whatever they might be, are claims as to what is right. Any such claim is open to the possibility of violation. And those violations of the right give rise to a demand for redress, where that demand is itself a matter of justice. For example, in the events surrounding the beating of Rodney King, there was not just one wrong (the beating) but two – first the beating and second the acquittal, the one an invasion of the right to physical integrity, the other a failure to redress the first – and the two wrongs stand in an ordered relationship such that the second is logically dependent on the first. Thus the redressive demand changes the conceptual structure of justice. One must build two coordinate systems of norms, the one a set of primary norms, defining how people are to behave so as to avoid wrongdoing, and the other a set of redressive norms, identifying the proper response to wrongdoing when it occurs – just as there must be in any sport one set of rules specifying how to play without committing fouls (e.g., don’t run while carrying the ball in basketball) and another set of rules specifying what to do when a foul is committed (e.g., give the other team free throws). Thus this paper’s thesis: Any complete theory of justice requires an account of both primary justice and redressive justice. The former has been the particular concern of contemporary political philosophy in the tradition of John Rawls. The latter, wrongly neglected in the contemporary theoretical tradition, is the special province of a legal system.