Arguing, Argumentation and Justification
There was a certain confluence of events today that prompted this post.
1. Roman Law (the right for fathers to sell children into slavery)
2. International Human Rights (the idea of grundsnorm and axioms)
3. Chinese Law (Socialist Legal System....sort of)
4. Ongoing exchange on income inequity and retributive tax regime on YR
There is a theoretical approach called the critical approach which encourages us to be aware and critical of our mental frameworks when evaluating an external system. A somewhat analogous parallel would be what Hart calls the external as opposed to internal critique. The relevance is that it forces us to be aware of and hopefully be able to justify the particular schema or analytical framework that we are using.
For example, to twist an example used by Lon Fuller in his Morality of Law (and validly critique by Hart in his article pointing out that it might as well be called the Morality of Poisoning), he argues that there would be something intrinsically inconsistent and immoral if we randomly assigned rights to people without due regard as to their status or position and the example he uses is abortion. However, given that any abortion regulation e.g. wait periods, 2nd physician, facilities that can be used for termination etc., inevitably places an increased burden on indigent women, is it anymore right/moral/immoral that because of their economic condition they are forced to relinquish control over their own bodily integrity as opposed to a lottery draw for any woman regardless of their economic position?
Or take a less emotive topic e.g. right of road access. In certain cities e.g. Manila and Mexico City (and some European cities), in a bid to curb the number of cars using the roads on any single day, they have a system which only permits cars with even numbers on certain days and odd numbers on others. This system can be contrasted to a system, say Singapore's which puts a huge premium on the prices of cars and further delineates access to certain roads at certain times of the day with willingness (and capacity) to pay.
Or why do we even principally support redistributive policies anyway? One justification is the entire veil of ignorance argument i.e. assume you do not know what your status in life will be, create a system and the system that is created will in turn tend to look somewhat like the capitalist welfare states that we generally have. But even Jon Rawls (the philosopher form which the former proposition was derived) believed the only form of inequity that should exist is that which takes from the rich to give to the poor. But do the rich necessarily consume more resources and when they pay 12 times more in absolute terms, do they get 12 times the vote or 12 times the response time from the police (actually...)? I generally accept redistributive policies on the basis of indifference curves and marginal utility analysis but I don't think there is a particular principled reason why it's necessarily normatively better than another principle.
Or the eternal question of whether a colour-blind Constitution is actually more equal than a Constitution that supports Affirmative Action or vice versa.