Emanuela Ceva

Beyond Legitimacy. Can Proceduralism Say Anything Relevant About Justice

Whilst legitimacy is often thought to concern the processes through which coercive decisions are made in society, justice has been standardly viewed as a ‘substantial’ matter concerning the moral justification of the terms of social cooperation. Accordingly, theorization about procedures may seem appropriate for the former but not for the latter. To defend proceduralism as a relevant approach to justice, I distinguish three questions: (1) Who is entitled to exercise coercive power? (2) On what terms should the participants to a scheme of cooperation interact? (3) How should the costs and benefits produced by cooperation be distributed? Legitimacy concerns (1), whereas justice applies to (2) and (3). Although the appropriateness of proceduralism is debatable in relation to (3), it seems well equipped to address the justice-related question in (2). And it does so by focusing on the inherent moral acceptability of the way in which persons are treated by the procedures through which they interact.

Values, Diversity and the Justification of EU Institutions

Liberal theories of justice typically claim that political institutions should be justifiable to those who live under them – whatever their values. The more such values diverge, the greater the challenge of justifiability. Diversity of this kind becomes especially pronounced when the institutions in question are supranational. Focusing on the case of the European Union, this article aims to address a basic question: what kinds of values should inform the justification of political institutions facing a plurality of value systems? One route to an answer is provided by John Rawls, who famously distinguishes between comprehensive and political values, and defends the exclusion of the former from the foundations of a political theory of justice. This article questions the tenability of the Rawlsian solution, and draws attention to an alternative twofold conceptual distinction: that between minimal and non-minimal and between substantive and procedural values. Minimal values are meant to be as independent as possible of controversial conceptions of the good and views of the world, regardless of whether these are comprehensive or purely political. It will be argued that their endorsement may thus further specify the nature of what should be shared in order to justify political institutions in conditions of pluralism. In order to refine further the account of such a basis of justification, two variants of minimalism will be presented according to whether they invest substantive or procedural values. Substantive values qualify the property of an outcome; procedural values qualify the property of a procedure. The latter part of the article consists of a ‘face-off’ between minimal proceduralism and minimal substantivism, considering reasons in favour of the adoption of each. The result, we suggest, is a helpful reorientation of the political dimension of the value debates to which the multiplicity of values amid contemporary European horizons give rise.

Plural Values and Heterogeneous Situations Considerations on the Scope for a Political Theory of Justice

This article aims to investigate the way in which a political theory of justice should respond to the endorsement of pluralism. After offering reasons in support of the necessity for such a theory to take pluralism seriously, an argument is put forward for its characterization in minimal and procedural terms. However, taking issue with the straightforward relationship of implication identified by a number of scholars between pluralism and procedural justice, this article contends that a direct relation can only be established between pluralism and the need to define a minimal theory of justice, i.e. a theory that assumes as little as possible in terms of values and views of the world. Its procedural formulation is seen, instead, as a consequence of the limited predictive power of theory facing the heterogeneous situations with which it is expected to deal.

Seeking mutual understanding: a discourse-theoretical analysis of the WTO Dispute Settlement System

The Dispute Settlement System (DSS) of the World Trade Organisation (WTO) is a mechanism to settle international trade controversies by means of adversarial procedures. In this paper we aim to address the following question: why is the DSS adversarial in kind and articulated through such sophisticated procedures? We shall combine studies in the fields of politics, law and economics through philosophical analysis to look for a systemic answer to this question in the inherent qualities of the procedures through which the DSS is articulated. Specifically, we shall resort to Jurgen Habermas’s discourse theory, as a hermeneutic device to disentangle the different kinds of “action orientations” DS procedures may have (compromise, consensus and understanding). We shall identify the reasons of the specific characterisation given to the DSS in the purposeful connections between its procedural features, the general aims pursued by the WTO and the disputes emerging within it. (This abstract was borrowed from another version of this item.)

Whose Self-Determination? Barriers to Access to Emergency Hormonal Contraception in Italy

In Italy, Emergency Hormonal Contraception (EHC) is a prescription drug, available only in pharmacies. Evidence suggests that a number of doctors and pharmacists refuse to provide EHC, on grounds of conscience, although the exact frequency of this phenomenon is unknown. This creates a barrier to access to EHC for women, thus risking undermining their right to reproductive self-determination. In this article, we aim to offer a clearer empirical and theoretical understanding of the situation and to assess the force of doctors’ and pharmacists’ claims against providing EHC. Unlike standard discussions of the issue, we argue that the category of conscientious objection is not the most appropriate one for making sense of these claims, because they are not grounded in a conflict between two contrasting moral duties. The seemingly forced choice between protecting doctors’ and pharmacists’ professional self-determination and women’s reproductive self-determination could be prevented by distributing EHC without medical prescription and in a number of outlets (including supermarkets), thus relieving doctors and pharmacists from the legal duty to provide it.

Liberal Democratic Institutions and the Damages of Political Corruption

This article contributes to the debate concerning the identification of politically relevant cases of corruption in a democracy by sketching the basic traits of an original liberal theory of institutional corruption. We define this form of corruption as a deviation with respect to the role entrusted to people occupying certain institutional positions, which are crucial for the implementation of public rules, for private gain. In order to illustrate the damages that corrupt behaviour makes to liberal democratic institutions, we discuss the case of health care professionals’ abuse of their right to conscientious objection to abortion services. We show that the conscience clause can be instrumentally abused to sabotage democratically established public rules and thus exert undue private influence on their implementation. In this sense, from a liberal democratic perspective, institutional corruption is problematic because it is disruptive of such fundamental liberal ideals as the impartiality of public institutions and citizens’ political equality.

Just Interactions in Value Conflicts: The Adversary Argumentation Principle

This article discusses a procedural, minimalist approach to justice in terms of fair hearing applicable to value conflicts at impasse in politics. This approach may be summarized in the Adversary Argumentation Principle (AAP): the idea that each side in a conflict should be heard. I engage with Stuart Hampshire’s efforts to justify the AAP and argue that those efforts have failed to provide normatively cogent foundations for it. I suggest deriving such foundations from a basic idea of procedural equality (all parties in a conflict should be granted an equal chance to have a say) which all conflicting parties could be thought to endorse. But what happens once all parties have been heard if no agreement is reached? Borrowing a distinction well known to scholars of peace studies, but surprisingly neglected by justice-driven political philosophers, I claim that although the AAP might be inconclusive with regard to resolving a conflict, it is a promising principle for managing value conflicts justly. The AAP is thus considered anew through the lens of conflict management: as a principle of justice to characterize normatively the way conflicting parties should interact for their interaction to be morally justifiable to such parties with a view to changing antagonistic conflict dynamics into cooperative ones.

Political corruption, individual behaviour and the quality of institutions

Is the corrupt behaviour of public officials a politically relevant kind of wrong only when it causes the malfunctioning of institutions? We challenge recent institutionalist approaches to political corruption by showing a sense in which the individual corrupt behaviour of certain public officials is wrong not only as a breach of personal morality but in inherently politically salient terms. To show this sense, we focus on a specific instance of individual corrupt behaviour on the part of public officials entrusted with the power to implement public rules in a liberal democracy. Although not necessarily unlawful, their behaviour is politically wrong qua corrupt when it contradicts surreptitiously the requirement of public justification that undergirds the public order. Then, we distinguish this form of corruption as surreptitious action from such unlawful but publicly justifiable kinds of political misbehaviour as civil disobedience.

Introduction: Justice, Legitimacy and Diversity

That a polity should be, in a basic sense, legitimate and just is hardly a disputed stance among political theorists. More precisely, the task – commonly considered crucial to liberal political philosophy – of justifying the social order to all those who are subjected to it is standardly seen to embody both elements of justice and of legitimacy (Nagel 1991, Estlund 2007). However, there is little by way of consensus regarding the distinction between the two terms. Some draw a connection between them by explicitly presenting legitimacy as a criterion of minimal justice (Hampton 1998, Buchanan 2002), or in fact by considering justice as what specifies the standards of legitimacy, in the sense that the only authoritative orders a state may issue are just ones (Rawls 1971). Other theorists have disentangled justice and legitimacy altogether by construing both concepts as separate components of the answer to a wider question concerning the overall justification of the social order and of political authority, e.g. by arguing that a liberal–democratic political order calls for a specific kind of interaction between justice and legitimacy, where neither is a by-product of the other (Simmons 1999). The possibility to operate a conceptual and/or empirical separation between the two ideas remains controversial, but has been object of little discussion. This issue aims to fill that gap. More specifically, it investigates the nature of the distinction between justice and legitimacy as well as the possible normative fallout of different ways of articulating the relationship between the two concepts. In fact, as some of the papers will demonstrate, the ways in which a polity should respond to ethical diversity are a particularly poignant example of how different understandings of the relationship between justice and legitimacy can make a difference to the normative standing of various concrete policies. That becomes clear if one considers the question – prominent in this issue – of whether justice or legitimacy should be the first question of

An Ex Post Legem Approach to the Reconciliation of Minority Issues in Contemporary Democracies

The reconciliation of minority issues is one of the most pressing challenges with which contemporary democracies are confronted. It has been addressed in at least two distinct ways. The first, ex ante legem, focuses on the deliberative phase and establishes criteria for the distribution of rights to participate in the public debate. The second, ex post legem, looks at the post-law-enactment phase and finds the key to reconciling minority issues in the possibility of repealing or amending a controversial law. This chapter will critically consider the former approach and defend the latter, paying special attention to its formulation in terms of granting particular exemptions from generally applicable laws. It will do so with a view to answering the following question: how should a liberal democratic polity reconcile minority claims whilst preserving the autonomy of all of its citizens?