Abstract
The author suggests a classification of statutory provisions present in the modern legal systems based on the differentiation between holistic (declare the need to achieve a specific supraindividual goal by the society) and liberal (rule out the possibility of existence of the society as an independent subject and appeal to the idea of freedom) theories of justice; proposes an idea that the political order where political authorities assume responsibility for adoption of all types of provisions is a form of intellectual fundamentalism and may under certain conditions result in the development of a totalitarian regime; substantiates timeliness of developing a procedural theory of justice, which requires creation of a separate power structure that would put individual freedom ahead of political goals, and assumes that such a form of intellectual pluralism may become one of the keys to reforming the system of separation of powers.
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Notes
Considering the arguments for laissez faire brought forward by the Austrian school, we shall not claim that these norms have positive effect, but state that the lawmaker pursues or declares such a goal when adopting these norms when discussing the political norms correcting economic processes. Let us leave the question whether the state shall regulate the free market or not and consequences of such a control to the discretion of specialists.
For analysis of this issue and the goals pursued by the lawmaker adopting such norms see Sandel [18: 167–184].
A perfect illustration of this approach is reflected in one of the most quoted phrases of Aristotle: ‘It is evident, then, that the city belongs among the things that exist by nature, and that man is by nature a political animal. He is without a city through nature rather than chance is either a mean sorts or superior to man’ [4: 37].
For more information about protective agencies see Nozick [14: 10–26].
The idea of division of norms into political and conventional in some sense appeals to the theoretical division of approaches to justice, proposed by Sandel [18: 19–21]: conventional norms are theories of justice, starting with freedom (that is, considering the individual as the basic ontological unit of social life), political norms, in turn, implement approaches that associate justice with a good way of life, as well as with the maximization of benefit (that is, accepting society as the basic ontological unit of social life).
The argument against using the harm principle to define borders of freedom elaborated in the Mill’s theory is taken from works I. Shapiro, who discussed it in more detail [20: 152–178].
It should be mentioned that it may be tempting to criticize Mill’s examples of freedom restriction for the sake of benefit, particularly in the sphere of electoral law, to attempt to prove that the maximum individual freedom results in the maximum social benefit, not least because these examples come into an apparent contradiction to measured judgments of an average modern person. However, there are other, much more apparent examples: we would never agree to our neighbor’s producing dynamite at home in an improvised manner or a stranger’s offending us in the street upon the pretext that we retain the same right with respect to them.
In particular, the executive branch of power in continental Europe has ample opportunities to intervene in the judicial process. See e.g. Broadberry and O’Rourke [6: 81–87].
It should be mentioned that in addition to the system of separation of powers, there is a number of other institutions that allow limitation of authority: mediation, soft law, corporate rules and NGO activities. However, we leave them aside for two reasons. First, there is a fairly wide range of literature describing these institutions of civil society and their impact on a state, up to the assertion that the development of some of them leads to the decline of a state (see e.g. van Creveld [21: 336–414]). Secondly, without detriment to the study, we can separate the consideration of the procedural theory of justice from the problem of the formation of these public institutions. Although it is necessary to recognize that the parallel development of these phenomena in real social practices should provide greater prevention from the emergence of a totalitarian regime.
More information on elevated historical experience, practical esthetic experience, infeasibility of verbal expression and evaluation thereof from the position of right and wrong see Ankersmit [2].
One of the elements of models of good life, apparently, can be a certain system of redistribution of resources (in the form of the implementation of the theory of justice as honesty by J. Rawls or equality of resources suggested by R Dworkin). Yet we shall admit that this issue requires much more in-depth analysis, because there are quite serious arguments in favor of the assertion that the phenomenon of social justice stimulates the development of envy in society [14: 239–246; 19: 247–252, 292–294].
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Kurazhenkov, D.S. Procedural Justice as an Element of Intellectual Pluralism. Int J Semiot Law 34, 303–318 (2021). https://doi.org/10.1007/s11196-019-09623-6
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DOI: https://doi.org/10.1007/s11196-019-09623-6