JJS 2006 Volume 31 Issue 1

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Browsing JJS 2006 Volume 31 Issue 1 by Author "Strauss, D. F. M."

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    The mixed legacy underlying Rawls’s Theory of justice
    (Faculty of Law, University of the Free State, 2006) Strauss, D. F. M.
    English: The Theory of justice advanced by Rawls must be understood within the context of factual legal approaches (such as positivism and pragmatism) that eliminated normative considerations. By contrast, Rawls argues for an account of the role of normative legal principles by proceeding from an idea introduced during the Enlightenment, namely that of a social contract. However, the way in which he speaks about law, morality and virtues clearly demonstrates his indebtedness to Ancient Greek and Medieval conceptions as well. His assumption is that it is possible for normal human beings to arrive at a rational consensus by assuming that these individuals not only do have a normative (moral) awareness but that they are also capable to take distance from their factual societal position and relations (the veil of ignorance) in order to be open to moral principles acceptable to every normally developed human being. This article sets out to investigate the historical roots of the idea of a just society by contrasting the classical Greek and Medieval ideals with that of modern approaches since the Renaissance, particularly the account found in natural law theories about the supposed social contract lying at the foundation of an ordered and just society. The open-ended problems present within this legacy — particularly regarding the inherent shortcomings of both atomistic and holistic orientations implicit in the mainstream views on being human and on the place of the latter within human society and the state — are then related to the mixed assumptions underlying Rawls’s theory at a basic level. It will be argued that although his intention is to advocate the basic elements of a constitutional democracy, this aim is threatened by the latent holistic undertones accompanying his entire theory.