2010/2018

Jurisprudence Short Note

[DOCUMENT SUBTITLE]
MIKI
[COMPANY NAME] | [Company address]
 Unit Seven
Radical Legal Theories
Critical Legal Studies

What is the basis of critical legal studies?

 It puts forward the proposition that all other legal theories are fundamentally flawed in their belief that sense and order can be
discerned from a reasoned analysis of law and the legal system:
 Critical legal theory not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the
whole enterprise of jurisprudence as operating to confer a spurious legitimacy on law and legal systems.
 Critical legal scholars appear to reject the theory of instrumentalism and the argument that law is simply a part of the superstructure
of society. Rather, Law is an aspect of the social totality, not just the tail of the dog.
What is the major aims of critical legal studies?
 The overall aim of critical theory is to destroy the notion that there is one single 'truth', and that by disclosing the all-pervasive power
structures and hierarchies in the law and legal system, a multitude of other possibilities will be revealed, all equally valid.
 To show that these contradictions are to be found in all legal concepts and rules, even in the so-called clear cases where the contradiction
has simply been successfully repressed over a period of time.
If so, what are the major critical analysis of critical legal study scholars?
A. The Critique of the Liberal Legal Tradition
 a fundamental disbelief that the law has objective content and is neutral in its operation, but also a belief that the liberal legal tradition has
used this portrayal of the legal system to mask the fundamental contradictions inherent in the law.
 The law is portrayed as rational, coherent, necessary and just by liberal legal scholarship, when in fact, according to the critical legal
scholars, it is arbitrary, contingent, unnecessary and profoundly unjust. This constitutes a direct attack on the ideal found embedded in
Western legal and political thought, the rule of law.
 Western liberal concepts of basic civil and political rights which purportedly guarantee, in a legal sense, the individual's freedom of
speech, assembly, religion, and in a political sense liberal democracies are based on the concept of the freedom of the individual.
 These rights and freedoms are portrayed in the Western tradition as being the only true way to self-realization and freedom of the
individual. The critical legal scholars' aim is to show that these rights and freedoms, although put forward as essential to an
individual's fulfilment, actually serve the political and economic requirements of liberalism.
E.g. freedom of k in which you are indirectly forced to enter in to contract to promote capitalism as one way of liberalism objective.
B. An attack on formalism
 the Critical legal studies caricature of the notion that law is a deductive and autonomous science that is self-contained in the sense that
particular decisions follow from the application of legal principles, precedents, and rules of procedure without regard to values, social
goals, or political or economic context. (similar to realists attack on formalism)
C. Critique of legal reasoning
 The critical scholars address the problem by concentrating, as the American realists did, on the existence of external factors that
operate on the judge.
 However, whereas the realists did recognize that legal reasoning and rules played a part, albeit a minor one, in the judge's decision,
the critical legal scholars are of the opinion that these external factors are the sole operative factor in the judgment.
 Judges share social and political assumptions, in other words they share an ideology which, because of their background, leads them
to make consistent decisions that reinforce the liberal order in which they operate and depend on for their livelihoods. This then
distinguishes the realist from the critical lawyer.
N.B. A problem with the critical legal studies approach to legal reasoning is that, like its critique of formalism, it appears to lack any detail
or precision.
Contradictions in the law
 It is the critical lawyers' view that liberal legalism represents the status quo in society and that it seeks to mask the injustice of the
system. They attempt to seek out the conflict-ridden substance that is hidden beneath that apparently smooth surface.
If so, what are the major contradiction of liberal thoughts identified by critical legal scholars?
A. Contradiction of individualization and collectivism (Altruism)
 Contrasts the individualism present in the dominant liberal legal thinking, in the form of the application of rigid and precise rules, with
the notion of altruism or collectivism
 Altruism, sometimes permit the judge to reach a decision, after the fact, on the basis of all the circumstances, as a person-in-society
rather than as an individual and denies the judge the right to apply rules without looking over his shoulder at the results.
B. Contradiction between a commitment to the traditional liberal notion
 The traditional liberal notion that values or desires are arbitrary, subjective, individual, and individuating while facts or reason are objective
and universal and a commitment to the ideal that we can 'know' social and ethical truths objectively (through objective knowledge of true
human nature)
 It is one of the central tenants of positivism - the separation of law from value judgments.
Deconstruction: trashing, delegitimation and dereification
What is deconstruction methods?
 These are the various techniques the critical lawyers use to reveal the underlying contradictions in the law and the deep-rooted
hierarchies of power that are also hidden beneath the neutral exterior of the law
What are the major forms of deconstruction?
 Deconstruction of law and legal language takes three main forms;
a. Trashing or Debunking: is essentially aimed at revealing the illegitimate hierarchies (power structures) that exist within the law and
society in general. The task of the critical lawyers is to reveal those hierarchies and undermine them. (even at the university level)
 b. Delegitimation: It is aimed at exposing what the scholars see as one of the most important functions of law in a liberal society, namely
the legitimation of the socio-economic system of that society. To delegitimate law the scholars attempt to strip away the veneer of
legitimacy to reveal the ideological underpinnings of the legal system. To many scholars the legitimacy conferred on the social
system by the law is vitally important to the continuance of that system with all its unfairness and exploitation.
c. 'Dereification: is simply the recognition and exposure of such fallacies, to reveal the law as it really is. Provided that, the law is
characterized by reification, which involves a gradual process whereby abstractions, originally tied to concrete situations, are then
themselves used, and operate, instead of the concrete situations. Simply put, the abstraction or concept takes on the form of a thing.
(e.g wills and execution of wills)
The constitutive theory of law
 Law is not simply an armed receptacle for values and priorities determined elsewhere; it is part of a complex social totality in which
it constitutes as well as is constituted, shapes as well as is shaped.
 The idea that law plays an important role in shaping society is part of the wider post-modernist perspective that ideas, and not the economic
base, constitute (form or make up) society. (Thus, there is the convergence of opinions or ideas of the community that constitute and
constituted the community itself known as a 'shared world-view.)
Why the constitutive world view theory is formulated?
 The aim is to attack the shared world-view embedded in legal consciousness, to reveal its link to domination in capitalist legal societies,
and to change that consciousness.
Critical Legal Studies and Feminist Legal Theory
 Feminist theories not only seek to identify and counter a traditionally male-oriented legal system but also to question male-oriented theories
and ideologies
 feminist thought emphasizes a rejection of a search for objective 'truths' about law and puts in its place a contextual understanding of law
as a social construct which is a product of a variety of influences, some of which are covert or even unrecognized.
 Feminism and critical legal studies are, of course, two entirely different creatures. Feminism is only partially and peripherally concerned
with academic theorizing.
What is the common feature of feminist legal theories?
 Three basic elements which characterize a feminist legal theory. These are:
a. asking the 'woman question', i.e the extent of the presence and recognition of women's experience in law;
b. feminist practical reasoning, meaning a reasoning which proceeds from context and values difference and the experience of the
unempowered; and
c. Consciousness raising, meaning an exploration of the collective experience of women through a sharing of individual experiences.
Postmodern Legal Theory
 Latest legal studies in 1990s.
 Liberalism and capitalism are not the end of the road but are simply the major components of what the postmodernists call 'modernity'.
 Modernity's structures, its laws, its literature, its architecture, its art, in fact any of its products, are all subject to 'deconstruction', a process
which reveals numerous alternatives.
 An inherent aspect of this process is a recognition that society is simply made up of a complex network of subjectivities and contains no
objective truths or natural laws upon which it can be grounded.
 Unit Eight
Justice

Justice (proper ordering of things and persons

within a society)

Corrective Justice Distributive Justice

referring to the manner with which society address
concerned with how basic social resources are
or redress wrong. distributed among members

A. John Rawls: Justice as Fairness

What is the basis of justice as fairness means?
 Accepting those principles that would result from an ‘original position’ for the purpose of social cooperation. In this original position
the parties set out, subject to conditions considered reasonable (also under veil of ignorance) and fair, to agree the principles by
which their society should be organized.
 The original position is thus a social contract position although the contract is a hypothetical one. The conditions to be fulfilled
before the contract are basic democratic freedoms (also known as pre-conditions for democracy) such as expression, demonstration,
association, and vote and to be voted for.
 The ‘veil of ignorance’ requires parties to temporarily put aside their backgrounds such as envy, sex and status (social and economic)
because those are unnecessary for the parties to reach agreement on reasonable and fair principles for all.
What is the difference between concept of justice and conception of justice?
 Rawls makes a distinction between the concepts of justice and conception of justice. He claims that any theory of justice must deal with
both of these.

Conception of justice
Concept of justice
the interpretation of the role of
the role of its principles in
Justice these principles in a particular
assigning rights and duties and in
situation. (subjective)
defining the appropriate division
of social advantage. (objective)

Each person participating Inequalities are arbitrary unless it is

N.B. Rawls’ theory in its own terms is designed to cope with
in a practice, or affected by reasonable to expect that they will
situations where mutually disinterested (self-interested) it, has an equal right to the work out for everyone's advantage
persons put forward conflicting claims to a division of goods most extensive liberty (especially for the least advantaged),
compatible with a like and provided the positions and
and services under conditions of moderate scarcity. His liberty for all; (principle 1) offices to which they attach, or from
theory is of no application in conditions of total scarcity. which they may be gained, are open
Providing everyone with
to all. (Principle 2)
basic human freedoms such
as freedom of thought, Is about equal distribution of primary
religion, belief, expression social resources to everyone and
inequalities are arbitrary but
incentives should be provided to the
least advantaged without sacrificing
the interest of the rest
Which principle have a priority?
 The first principle has absolute priority over the second. This means there cannot be a trade-off of liberty for the sake of distribution
or economic development.
 However, Rawls admits that under scarcity or poverty this rule can be relaxed until a certain level of economic development is
reached because the question is of survival rather than justice.
B. Will Kymlicka: Justice and Minority Rights
 Virtually, all liberal democracies are either multinational or Polyethnic, or both.
 The 'challenge of multiculturalism' is to accommodate these national and ethnic differences in a stable and morally defensible way through
granting group specific rights.

Group specific Rights (inherent and permanent rights)

Self-government Rights
It is important to note that these claims are Polyethnic Rights Special representation right
not seen as a temporary measure, or as a are intended to help ethnic groups and there is increasing interest in the idea that a certain
remedy for a form of oppression that we religious minorities express their cultural number of seats in the legislature should be
might (or ought) someday eliminate, rather particularity and pride without it reserved for the members of disadvantaged or
it is permanent and inherent. hampering their success in the economic marginalized groups
One mechanism for recognizing claims to and political institutions of the dominant it would seem to be a corollary of self-government
self-government is federalism, which society. that the national minority be guaranteed
divides powers between the central Mostly by migrant populations from representation on any body which can interpret or
government and regional subunits diffrent ethinicity. modify its powers of self-government (e.g. the
(provinces/ states/ cantons). Supreme Court in USA hypothetically and the
House of Federation in Ethiopia actually).
C. Defenses For Group Specific Rights
a. The Equality Argument
 This equality-based argument will only endorse special rights for national minorities if there actually is a disadvantage with respect
to cultural membership, and if the rights actually serve to rectify the disadvantage. Hence, the legitimate scope of these rights will
vary with the circumstances
What is a fair way to recognize languages, draw boundaries, and distribute powers?
 We should aim at ensuring that all national groups have the opportunity to maintain themselves as a distinct culture, if they so
choose.
 Hence group-differentiated self-government rights compensate for unequal circumstances which put the members of minority
cultures at a systemic disadvantage in the cultural marketplace; regardless of their personal choices in life.
b. The Role of Historical Agreements
 A second argument in defense of group-differentiated rights for national minorities is that they are the result of historical agreements,
such as the treaty rights of indigenous peoples, or the agreement by which two or more peoples agreed to federate.
E.g. how Axumite, Zagwe and other kingdoms acquire the will of people….
 Forming a federation is one way of exercising a people's right of self-determination, and the historic terms of federation reflect the group's
judgment about how best to exercise that right.
c. Sticking a Balance
 If we wish to defend group differentiated rights, we should not rely solely on historical agreements. Since historical agreements must
always be interpreted, and inevitably need to be updated and revised, we must be able to ground the historical agreements in a deeper
theory of justice.
 The historical and equality arguments must work together.
 CHAPTER NINE
LIBERTY
What are the common forms liberty?

Liberty Based On ‘Ideological’ Differences

Individual Liberty Group Liberty

the autonomy of the individual and absence of external interference. This people in general and groups but does not rule out individuals. It is
has been embraced by the West from the natural right theories and concerned with not only external interferences but also mostly internal
American Constitution up until today. All individual rights are considered ones, which means that people may not be capable of freedom even in the
to be of this sort. (Rawl concept of Librety) absence of external interference and thus may need assistance from the
state. This idea crudely formulated by the Greeks in the form of
democracy (government of the people), (Group Rights)

 Isaiah Berlin: Two Concepts of Liberty

 the two political senses of liberty which Berlin calls are;
a. the 'negative' sense: is involved in the answer to the question 'What is the area within which the subject - a person or group of
persons - is or should be left to do or be what he is able to do or be, without interference by other persons?'
b. The ‘positive’ sense: is involved in the answer to the question 'What, or who, is the source of control or interference that can
determine someone to do, or be, this rather than that?'
 The Two Conceets Of Liberity

Negative' Freedom
is simply the area within which a man can act unobstructed by others
Coercion implies the deliberate interference of other human beings Positive Freedome
within the area in which I could otherwise act. This demonstrates that conceptions of freedom directly derive from
Mere incapacity to attain a goal is not lack of political freedom. (e,g, views of what constitutes a self, a person, and a man (Iam the master of
poverity that hinder individual from attaining his goal is not lack of myself). Enough manipulation with the definition of man and freedom
political freedom) can be made to mean whatever the manipulator wishes.
The criterion of oppression is the part to be played by other human at times justifiable, to coerce men in the name of some goal (let us say,
beings, directly or indirectly, with or without the intention of doing so, justice or public health)
in frustrating my wishes. The wider the area of non-interference means
that the wider my freedom.

 Charles Taylor: What’s wrong with Negative Liberty?

 The negative theories, as we saw, want to define freedom in terms of individual independence from others; the positive also want to
identify freedom with collective self-government.
 The negative theories, as we saw, want to define freedom in terms of individual independence from others; the positive also want to
identify freedom with collective self-government.
 When people attack positive theories of freedom, they generally have some Left totalitarian theory in mind, according to which freedom
resides exclusively in exercising collective control over one's destiny in a classless society, the kind of theory which underlies, for instance,
official Communism.
 On the other side, there is a corresponding misrepresented version of negative freedom, which tends to come to the forefront. This is the
tough-minded version, going back to Hobbes, or in another way to Bentham, which sees freedom simply as the absence of external physical
or legal obstacles.

What are exercise and opportunity concepts? What is their relationship?

Charles Librety

Negative Theories (Opportunity-concept)

Doctrines of positive freedom (exercise-concept)
where being free is a matter of what we can do, of what it is open to us to
are concerned with a view of freedom, which involves essentially the
do, whether or not we do anything to exercise these options. This
exercising of control over one's life. On this view, one is free only to the
certainly is the case of the crude, original Hobbesian concept. Freedom
extent that one has effectively determined oneself and the shape of one's
consists just in there being no obstacle. It is a sufficient condition of
life.
one's being free that nothing stands in the way.

What are the problems of the negative concept? Can it work independently?
 There are some considerations one can put forward straight off to show that the pure (negative) concept won't work that there are
some discriminations among motivations which are essential to the concept of freedom as we use it.
 Even where we think of freedom as the absence of external obstacles, it is not the absence of such obstacles simply, for we make
discriminations between obstacles as representing more or less serious infringements of freedom. And we do this, because we deploy
the concept against a background understanding that certain goals and activities are more significant than others.
e.g. Thus we could say that my freedom is restricted if the local authority puts up a new traffic light at an intersection close to
my home; so that were previously I could cross as I liked, consistently with avoiding collision with other cars, now I have to wait
until the light is green.
Why this difference between the two cases?
 Because, we have a background understanding of some activities and goals as highly significant for human beings and others
as less so.

What are the obstacles for our background senses or understandings?

 Our attributions of freedom make sense against a background sense of more and less significant purposes, for the question of
freedom/ unfreedom is bound up with the frustration/fulfilment of our purposes.
 Further, our significant purposes can be frustrated by our own desires, and where these are sufficiently based on misapprehension,
we consider them as not really ours, and experience them as restraints. A man's freedom can therefore, be curtailed by internal,
motivational obstacles, as well as external ones.
Chapter Ten
Equality
Equality: Defining the Concept
Does equality have common definition?
 ‘Equality’ is a contested concept: "People who praise it or disparage it disagree about what they are praising or disparaging".
 Therefore a clear definition of equality in the face of widespread misconceptions about its meaning as a political idea.

What is the difference between equality and identity?

a. Equality’ (or ‘equal’): signifies correspondence between a group of different objects, persons, processes or circumstances that
have the same qualities in at least one respect, but not all respects, i.e., regarding one specific feature, with differences in other
features. For the same reason, it needs to be distinguished from ‘similarity’ -- the concept of merely approximate
correspondence
b. ‘Identity: signifying that one and the same object corresponds to itself in all its features: an object that can be referred to through
various individual terms, proper names, or descriptions. E.g. that men are equal is not to say that they are identical. Equality rather
implies similarity but not ‘sameness.
 What are the two versions of Equality?

 ‘Equality’ can be used in the very same sense both to describe and prescribe;
a. Descriptive Use Of Equality: the common standard is itself descriptive, e.g. two people weigh the same
b. Prescriptive use of equality: is present when a prescriptive standard is applied, i.e., a norm or rule, e.g. people ought to be equal
before the law. The standards grounding prescriptive assertions of equality contain at least two components;
A descriptive component: the assertions need to contain descriptive criteria, in order to identify those people to which
the rule or norm applies. The question of this identification -- who belongs to which category? -- may itself be normative,
e.g. to whom do the Ethiopian or U.S. laws apply?
A prescriptive component: the comparative standards contain something normative -- a moral or legal rule, in the
example, the U.S. laws -- specifying how those falling under the norm are to be treated.

If so, when we can say there is equality?

 Equality essentially consists of a tripartite relation between two (or several) objects or persons and one (or several) qualities.
 Two objects a and b are equal in a certain respect if, in that respect, they fall under the same general terminus. ‘Equality’ denotes
the relation between the objects that are compared.
 Every comparison presumes a concrete attribute defining the respect in which the equality applies -- equality thus referring to a
common sharing of this comparison-determining attribute.

Principles of Equality and Justice

 We are going to deal with four principles of equality. Accordingly, the three principles of equality hold generally and primarily for
all actions and treatment of others and for resulting circumstances.
 From the fourth principle onward, i.e., starting with the presumption of equality, this section is mainly concerned with distributive
justice and the evaluation of distribution
A. Formal Equality

When formal equality exists?

 When two persons have equal status in at least one normatively relevant respect, they must be treated equally with regard to this
respect. This is the generally accepted formal equality principle that Aristotle formulated in reference to Plato: "treat like cases as
like"

If so, which respects are normatively relevant and which are not?
 Some authors see this formal principle of equality as a specific application of a rule of rationality: it is irrational, because inconsistent,
to treat equal cases unequally without sufficient reasons.
 But most authors instead stress that what is here at stake is a moral principle of justice, basically corresponding with acknowledgment
of the impartial and universalizable nature of moral judgments, namely, the postulate of formal equality demands more than
consistency with one's subjective preferences.
 What is more important is possible justification vis-à-vis others of the equal or unequal treatment in question -- and this on the sole
basis of a situation's objective features.
B. Proportional Equality
What is proportional equality and what is its difference from formal equality?
 According to Aristotle, there are two kinds of equality;
a. Numerical Equality: A form of treatment of others when it treats all persons as indistinguishable, thus treating them identically
or granting them the same quantity of a good per capita. However, that is not always just.
b. Proportional Equality: is treating relatively equal when it treats all relevant persons in relation to their due.
 N.B. Just numerical equality is a special case of proportional equality
When numerical equality is appropriate?
 Numerical equality is only just under special circumstances, viz. when persons are equal in the relevant respects so that the relevant
proportions are equal.
When proportional equality is appropriate?
 Proportional equality further specifies formal equality; it is the more precise and detailed, hence actually the more comprehensive
formulation of formal equality. It indicates what produces an adequate equality.
 When factors speak for unequal treatment or distribution, because the persons are unequal in relevant respects, the treatment or
distribution proportional to these factors is just. Unequal claims to treatment or distribution must be considered proportionally:
that is the prerequisite for persons being considered equally.
C. Moral Equality
What does it mean to say human beings are morally equal? What are the grounds of moral equality?

 Until the eighteenth century, it was assumed that human beings are unequal by nature i.e., that there was a natural human hierarchy.
 Against Plato and Aristotle, the classical formula for justice according to which an action is just when it offers each individual his
or her due took on a substantively egalitarian meaning in the course of time, viz. everyone deserved the same dignity and the same
respect
 The principle of equal dignity and respect is now accepted as a minimum standard throughout mainstream Western culture
 To say that men are equal is not to say they are identical. The postulate of equality implies that underneath apparent differences,
certain recognizable entities or units exist that, by dint of being units, can be said to be ‘equal.’
 Fundamental equality means that persons are alike in important relevant and specified respects alone, and not that they are all
generally the same or can be treated in the same way.
 To recognize that human beings are all equally individuals does not mean having to treat them uniformly in any respects other than
those in which they clearly have a moral claim to be treated alike.
D. Presumption of Equality
What is the presumption of equality?
 The presumption of equality, in contrast, is a formal, procedural principle of construction located on a higher formal and
argumentative level.
 The presumption of equality is a prima facie principle of equal distribution for all goods (usually related with distributive justice)
politically suited for the process of public distribution.
 The presumption of equality requires that everyone, regardless of differences, should get an equal share in the distribution unless
certain types of differences are relevant and justify, through universally acceptable reasons, unequal distribution.
 Strict principle of equal distribution is not required, but it is morally necessary to justify impartially any unequal distribution. The
burden of proof lies on the side of those who favor any form of unequal distribution.
What should be raised to attain the effective role of equality in distributive justice?
 The presumption of equality provides an elegant procedure for constructing a theory of distributive justice. The following questions
would have to be answered in order to arrive at a substantial and full principle of justice.
What goods and burdens are to be justly distributed (or should be distributed)? Which social goods comprise the object of
distributive justice?
What are the spheres (of justice) into which these resources have to be grouped?
Who are the recipients of distribution? Who has a prima facie claim to a fair share?
What are the commonly cited yet in reality unjustified exceptions to equal distribution?
Which inequalities are justified?
Which approach, conception or theory of egalitarian distributive justice is therefore the best?
 What goods and burdens are to be justly distributed (or should be distributed)? There are various opinions as to which social
goods comprise the object of distributive justice.
Does distributive justice apply only to those goods commonly produced, i.e., through social and economic fair cooperation, or
to other goods as well, e.g. natural resources that are not the result of common cooperation?
Conceptions of Distributive Equality: Equality of What?
 We need to know the dimensions within which striving for equality is morally relevant. What follows is a brief review of the seven
most prominent conceptions of distributive equality.
a. Simple Equality and Objections to Equality in General
 Simple equality, meaning everyone being furnished with the same material level of goods and services, represents a strict position
as far as distributive justice is concerned. It is generally rejected as untenable.
 As an idea, simple equality fails because of problems that are raised regards to equality in general;
that equality of material goods can lead to unequal satisfaction
The time span needs to be indicated for realizing the desired model of equal distribution
Equality distorts incentives promoting achievement in the economic field, producing an inefficiency grounded in a waste of
assets arising from the administrative costs of redistribution. Equality and efficiency need to be placed in a balanced relation.
Moral objections: A strict and mechanical equal distribution between all individuals does not sufficiently take into account
the differences among individuals and their situations
Is very often associated with equality of results (although these are two distinct concepts). However, to strive only for equality
of results is problematic.
there is a danger of (strict) equality leading to uniformity, rather than to a respect for pluralism and democracy
b. Libertarianism
 Libertarianism and economic liberalism represent minimalist positions in relation to distributive justice. They both postulate an
original right to freedom and property, thus arguing against redistribution and social rights and for the free market.
 They assert an opposition between equality and freedom: the individual (natural) right to freedom can be limited only for the sake
of foreign and domestic peace.
 For this reason, libertarians consider maintaining public order the state's only legitimate duty.
 Many egalitarians, however, wish for more -- namely, an equality of (at least basic) life conditions.
c. Utilitarianism
 It is possible to interpret utilitarianism as concretising moral equality -- and this in a way meant to offer the same consideration to
the interests of all human beings.
 From the utilitarian perspective, since everyone counts as one and no one as more than one (Bentham), the interests of all should be
treated equally without consideration of contents of interest or an individual's material situation,
d. Equality of Welfare
 The concept of welfare equality is motivated by an intuition that when it comes to political ethics, what is at stake is the individual's
well-being.
 The central criterion for justice must consequently be equalizing the level of welfare. But taking welfare as what is to be equalized
leads into major difficulties, which resemble those of utilitarianism.
e. Equality of Resources
 Represented above all by both Rawls and Dworkin, resource equality avoids such problems.
 It holds individuals responsible for their decisions and actions, not, however, for circumstances beyond their control -- race, sex, and
skin-colour, but also intelligence and social position -- which thus are excluded as distributive criteria.
 Equal opportunity is insufficient because it does not compensate for unequal innate gifts. What applies for social circumstances
should also apply for such gifts, both these factors being purely arbitrary from a moral point of view and requiring adjustment.
 According to Rawls, human beings should have the same initial expectations of "basic goods,".
f. Equality of Opportunity for Welfare or Advantage
 This approaches are meant to equalize outcomes, insofar as they are the consequences of causes beyond a person's control (i.e.,
beyond circumstances or endowment), but to allow differential outcomes in so far as they result from autonomous choice or ambition.
 But the approaches are also aimed at maintaining the insight that individual preferences have to count, as the sole basis for a necessary
linkage back to the individual perspective: otherwise, there is an overlooking of the person's value.
g. Capabilities Approaches
 For the value goods have for someone depends on objective possibilities, the natural environment, and individual capacities. Hence,
in contrast to the resourcist approach, Amartya Sen proposes orientating distribution around "capabilities to achieve functionings,"
i.e., the various things that a person manages to do or be in leading a life.
 In other words, evaluating individual well-being has to be tied to a capability for achieving and maintaining various precious
conditions and "functionings" constitutive of a person's being, such as adequate nourishment, good health, the ability to move about
freely or to appear in public without shame, and so forth.