The conceptual foundations of decision-making in a democracy

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Part Four
Justice
Part Four A
The Theory

4a.1) What Is Justice?

Justice has two different meanings:

1)	Positive justice refers to the institutions which develop, administer and apply the laws which regulate a society. Some authors even include the institutions which enforce these laws, but we will not do so in this book as it would not lead to different conclusions. The output, the product of the institutions of justice, consists of decisions, of judgements: The institutions of justice are decision-making organisations. From the constitution down to a verdict of the lowest court of law, these institutions clearly are instruments, organs, of society. They perform a function and they owe their existence to this function. An act which sins against positive justice is illegal.
2)	Normative justice consists of the set of standards, criteria, principles, norms by which we evaluate these institutions and the decisions they take. These norms are the gauges against which we hold an institution or a decision for judging it to be just or unjust. An act which sins against normative justice is illegitimate.

This book deals with normative justice and will henceforward use ‘justice’ in that sense. It attempts to determine:

-	the standards of justice which a democratic society should use to evaluate its institutions and their decisions
-	how to apply these standards.

Justice as a concept is a creation of men to organise their information processing, similar to Kant's ‘categories’. It deals with a fundamental human condition: to be part of a society. It refers to the explicit rules and laws which we engage to insure the coexistence and cooperation required for a functioning society. For all practical purposes (and for many philosophers also in theory) that concept - like time and space - exists in our minds prior to any discussion or statement of what pertains to justice and what is just. Like time and space, we need a point of reference to define in specific situations what is just or unjust. And like time and space, that reference point may be:

1)	concrete, have an existence which is independent from an observer (like Greenwich mean time or the standard metre in Paris) and thus can lead to ‘is’ statements which can be factually objective. That reference point is positive justice.

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2)	dependent on an evaluation in terms like ‘necessary’, which do not rest on such a reference point. The subject of this chapter is whether normative justice inevitably falls into this category or whether there can be an ‘objective’, concrete reference point.

4a.1.1) Normative justice as a concrete concept. Two views of justice claim the existence of a concrete reference point: positivists and adherents of ‘natural’ justice.

a)	Positivists correctly point out that there exists a concrete standard for justice: the set of standards and norms which are de facto applied in a society to evaluate the performance of its institutions of justice. Such standards always exist, for - implicitly or explicitly - we do evaluate these institutions and their decisions, and any evaluation presumes the existence of certain standards. If such norms are actually applied and unquestioned, they have become institutionalised and pertain to the concept of positive justice which is not our subject. But what if the norms of positive justice are contested? Why are these norms just? Answering that question requires other, more fundamental, norms and criteria which again can be questioned, etc. Any attempt to ground ‘ought’ in ‘is’ is doomed to failure, ends in infinite regress. An exhaustive philosophical justification for that statement is for instance provided by the doctoral thesis of my compatriot C.W. Maris: ‘Een natuurlijk equivalent van de plicht’. Radical ‘positivists’ have therefore concluded that any search for more fundamental norms against which to evaluate those which are de facto applied is a chimera and should be abandoned. The justification of that conclusion is however also based on a norm, namely one which defines the standard of what constitutes a ‘sensible’ search. Such a standard is just as questionable, just as subject to infinite regress, as any norm we would apply to evaluate the norms of justice actually ruling the society. Reducing all justice to positive justice does not do away with the problem of the foundation of norms but merely shoves it under the rug.^1
b)	The basic norms of justice are thought to be part of the nature of human individuals because men have a genetically determined propensity to develop norms of justice plus some inborn preference for one or more basic and specific norms such as the golden rule of justice. That view is expressed by statements such as ‘everybody has a sense of justice’. That theory meets the demarcation criterion presented in the previous part. (Older examples like ‘the law of nature’, ‘natural rights’, ‘God-given rights’ etc. do not.) Justice meeting these norms then can be considered to be a concrete concept which could be applied as an ultimate criterion for the evaluation of other norms. That theory would be compatible with the basic tenet of this book, namely that all judgements about justice contain a subjective element. For even if all ‘normal’ members of a soci-

1 The above-mentioned radical positivist position does not have much support; most positivists argue only that science alone cannot provide a final answer to the question what our norms of justice should be; science can only help us to apply as well as possible a fundamental norm which science (but not necessarily the individual scientist) takes as given, as some historical fact. That position is compatible with the conclusions of this book but does not provide a justification for that fundamental norm.

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ety have the same individual preference for a certain norm, it would still be subjective and would remain dependent on individuals to hold it. If all men had the same taste for a certain type of food, it would nonetheless remain a subjective preference. The only purely objective fact (excuse the pleonasm) of this concept of normative justice would be the number of people who have that same preference, and their success in satisfying it.

Today's state of science does not yet allow any conclusion as to whether a mental concept like justice is the expression of some inherited feature or not. But suppose that in the future psychology and anthropology will show that all men have inborn tendencies towards justice in general, and possibly towards some specific conceptions of it. Would that be a sufficient reason to abide by its dictates? It seems fairly certain that the human male is polygamous by instinct. Do we consider that a sufficient reason to abolish matrimony or to justify adultery? Is a particularly vicious but inborn temperament a valid excuse for condoning violence against fellow citizens? No! Even if we, as human beings, have some inborn tendency towards certain norms of justice, we are also endowed with the faculty of imagination and reason. We can question whether these norms are the best ones for today's society. We can, and we should. For if genetically determined, such norms developed at a time where man's environment, especially his social one, was totally different from what it is today.

In other words, even if nature has endowed us with certain ‘norms’ of social behaviour, accepting them as the norms we have to use in organising our society is a social decision which also will have to be justified by some norm. The concept of an inborn sense of justice provides no escape from infinite regress, and offers no ‘objective justification’ for abiding by it.

4a.1.2) Normative justice as an abstract concept. Clearly we grant ourselves the licence to question, evaluate and possibly overrule any de facto applied norm of justice on the basis of ‘higher’ concepts of justice.

Where do these higher concepts come from? What is their nature? They cannot be part of the human nature which they are supposed to keep in check. Nor can they be the norms and standards currently institutionalised in positive justice. For their function is precisely to evaluate and judge the current norms, for instance the views on race which at various times and places in history were or are a generally accepted, ‘natural’ norm.

Such ultimate concepts range from ideological systems (like a God-given general law of nature, some other theological consideration or the deduction of Kant's categorical imperative from an almost theological concept of pure reason) to the simple and often tacit assumption of some abstract concept of justice having an own, autonomous existence similar to Popper's concept of absolute Truth.

These concepts have in common that they are considered to be above and beyond the authority of men, to exist and be valid irrespective of the actual contingencies in which they are to be applied. That very property immunises them from any critical evaluation which could claim some degree of objectivity, such as the methods of empirical science, and from the necessity to justify their imposition. As explained in Part One, they are inherently undemocratic.

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Having in the previous paragraph refuted the notion that such a universal norm could be concrete, it seems logical to investigate the opposite view, namely that the concept of justice (in its normative sense) is an abstract concept which we have developed to define the class of all standards of justice which we use for the evaluation of the institutions of justice and their decisions. If so, it cannot provide an objective justification for any specific conception of justice, any specific norm for such an evaluation. Only the number of people endorsing it can be objective.

One normative principle which enjoys a fairly general acceptance is the subjective equality of all members of society. It is expressed by the ‘golden rule of justice’ requiring equal treatment for equal cases, and different treatment for different cases. It emphasises that judgements of society should be independent of the identity of the subjects concerned, and determined exclusively - as far as possible - by the objective aspects of the case, which include the positive justice currently in vigour.

Even if universally accepted, the golden rule of justice is relevant mainly in the applications of laws. As to the laws themselves, it provides no guidance for deciding what is to be termed equal, and what is different. For example it only prohibits those judgements which are intended to favour one group of individuals above another within the association which makes that law - which usually is the ruling class - while many discriminations between classes are institutionalised. In a society admitting serfdom, the masters see slaves as different because of the very fact that they are slaves, which in that particular society indeed is a fact, like the colour of our skin.

Consensus about the golden rule also does not imply that there is consensus about the elements which have to be considered as to their equality whenever that rule is to be applied. On many particular subjects, it cannot even provide an answer to the question whether there should be any law at all and what to do if we cannot make sure that a law will favour all men equally. In practice any law will in a given situation be more attractive to some people than to others. Few burglars will vote for stiff penalties on burglary, but all other citizens will. The golden rule only tells us that a law against burglary should apply to all subjects of the realm and be enforced with equal severity without regard as to the identity of the burglar, be he noble or common, man or woman. But it cannot tell us whether there should be such a law, and what the penalties should be. However universal it may be, the golden rule of justice clearly is insufficient for deciding about what is just.

Having no presence except in the mind of men, an abstract concept like the golden rule depends for its practical implementation on the minds and hands of men. Any contestation about such an abstract concept is per definition a contest between men, without recourse to any impartial authority; and being ‘higher’, it is not negotiable. That is why the notion of deriving authority from any higher or abstract concept of justice always must end in a pure power play as soon as it is challenged.

I do not question the existence of norms of justice and morals: there is a Bible and a Koran. The question that must be answered is: If they clash with somebody's own views of justice, why should he accept the sayings of the Bible or the Koran on that subject? Either we consider the choice for or against these norms as subjective, or there must be some objective norm which directs that choice. Where does that norm come from? We are back at square one.

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TO SUM UP: Seeing the normative justice as a concrete concept just raises another question. For our whole civilisation is one great effort of changing and improving on the natural state of men and his environment. Why then should we accept unchallenged a natural state in the field of justice? On the other hand, seeing normative justice as an abstract concept does not help, for by its abstract nature it can never provide an objective justification for imposing any concept of justice on even a single dissenter.

4a.2) Justice as a Function and a Tool.

The field of justice is the interaction between human beings: the concept of justice is not applicable to actions which affect only the acting individual. Whatever their origin, their justification or their philosophical foundation may be, the institutions of positive justice do fulfil an essential function in organising the social relations between individuals, in ensuring their coexistence and cooperation.

As justified by our knowledge of life and information, it is then natural to view and to evaluate justice from the point of view of the members of a society who experience and who need justice in that function. That is not to assert that the institutions of justice as well as the norms actually wielded in society for their evaluation are only tools. The functional evaluation of justice is not an irrational, teleological or reductionistic venture, provided it is not presented as a sufficient explanation of all its aspects.

All conclusions which may be drawn from such an instrumentalistic view of justice will be subjective and their acceptance is conventional. But as shown in Part One, so is the acceptance of any norm by society. By taking a functional view of justice we do not forego any objectivity which could be provided by other concepts of justice, on one condition: that we leave totally open the form and purpose of the organisation of society. We cannot deduce, from such an instrumentalistic view alone, any specific property of justice or of its institutions. And as will be shown further on, that view does not lead to classical utilitarianism. This instrumentalistic view must be totally acceptable to positivists. It may not satisfy idealists, but then no view but their own ever will.

The task of normative justice in a democracy is to define how society should evaluate the institutions and norms of justice, not how an individual should evaluate them. To the individual, just is whatever he considers to be so. In today's democracies, the process of aggregating individual norms into social ones is totally uncontrolled. The fundamental norms of justice are fuzzy and mostly implicit. If they seem to be generally accepted, that is precisely because they are fuzzy and implicit and thus can be interpreted so as to suit most individuals. By this same property they cannot adequately and in a democratic way perform their function of guiding the balancing and aggregation of individual interests and objectives into a social objective. In today's social decision-making, the lack of a real and explicit consensus about the fundamental norms often becomes apparent and robs the decisions of their perceived legitimacy. Both efficient decision-making and ensuring the democratic pedigree of these decisions require that these norms be explicit and unequivocal.

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Once we see justice as a tool for organising society, the basic criterion by which to evaluate the institutions of justice is clear: that criterion is the set of objectives which the organisation of society is intended to serve (in Weber's terminology, they are the substantial rationality of the decision-making institution of society as a whole). In a democracy, the social objective must be some form of aggregation of individual purposes and therefore defies any a priori determination. Yet there is one purpose which all those concerned with justice must share, for the very concern about justice proves that democrats expect to live in a society regulated by justice.

As explained in Part One, the assertion that human beings want to live in a society, that man is a social animal, does not imply that there are no exceptions: there are hermits. But the statement that a vast majority of men choose to live in a society is factually objective and can be proved. There is also a wide consensus that to do so is a condition for the survival of man as a species. Nonetheless, the choice to live in a society remains a subjective one. Fortunately, that is not a problem: if people do not want to live in a society, the principles and institutions of justice are totally irrelevant to them as long as they are allowed to opt out of the society. Provided that our laws and institutions honour the choice to become a hermit, we can ignore the opinions of hermits when defining justice, as only people who live in contact with other people will generate problems which justice is supposed to solve.

The very notion that justice is seen in terms of functionality and evaluated in relation to some purpose makes many philosophers of justice shudder and brand the author of that notion as ‘utilitarian’, a creed which has a connotation akin to ‘robber of the old and defenceless’, of crass profiteering and runaway capitalism. Applying this stigma to the concept of the functionality of justice is unjust.

The notion that evaluating justice in terms of a purpose must lead to utilitarism is simply in contradiction with the most elementary laws of logic, for the word ‘purpose’ is quite general and need not imply any notion of economic utility. For instance in the part about a just income distribution we refer to a book by Roskam Abbing who postulates as the final purpose of justice to bring about a society ruled by the morals of the Bible: he also sees justice as a tool, but for a highly idealistic objective.

The utilitarianism which generates a justifiable objection states that the fundamental and common objective of a society is to maximise the total wealth of that society. Justice would then be evaluated by the extent to which it contributes to the maximisation of total wealth. The classic objection to that philosophy is that it would justify the death of an individual if this death would lead to an increase in the total wealth of society. Another very relevant objection (see Part Four B) is that classic utilitarism excludes from the realm of justice the way in which this wealth is distributed. As long as that maximises total wealth, utilitarism would condone that a few people live in extreme luxury while many others live in abject misery.

Classical utilitarism makes one fundamental error. For if we acknowledge the functional aspect of justice, we must go all the way. In a democracy, the only judges of the purpose which the organisation of society should serve are its individual members, never a principle. If we consult

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them, we will find that only a minority holds the above utilitarian view: a couple of philosophers and some of society's more affluent members.

Clearly, by stating that justice has the function of organising the society and that it is to be evaluated on basis of the purpose we have in organising that society, we have only shifted the problem. The search for an ultimate norm for the evaluation of positive justice has been replaced by the necessity to define the fundamental purpose of society.

That move does however clarify and delimit the problem. First, it unequivocally highlights the subjectivity of any foundational norm of justice and tells us not to waste any effort by trying to find some generally valid or objective ultimate norm for the evaluation of justice. Secondly, in defining that objective we need to take account only of those who want to live in a society. Consequently, the viability of the society must be part of any objective of justice in a democratic society.

Clearly individuals have different, and often conflicting, objectives. No objective will satisfy everybody, so the more objectives we include in the fundamental ones by which we define justice, the smaller the group which will support the society defined by them. The basic objectives of society then should be limited to those which are absolutely essential to make the society worth-wile to strive for and to defend. They are the kind of objective of which we say: if these are not met, I would rather have no society at all. They are the basis for defining the fundamental norms of justice and - as stated - will in any case include the viability of the society thus defined.

As the choice for any objective (and thus of the norms deduced from it) is always subjective, its imposition on dissenters can find its justification only in power and thus leads to oppression. Those who value their freedom will require that the choice for or against an objective reflects their own free will. As explained in Part One, it is possible by a careful choice of our basic objective to ensure that the norms which we deduce from it can be legitimately imposed on all members of society as resulting from their own free choice. The one and only ultimate objective satisfying that condition is a democratic society, defined as a viable society which respects the ultimate authority of every individual over himself. Such an objective is at the root of those theories of justice which are grouped under the name of contract theory. The view of man implied by this objective clearly contains an individualistic component. The explanation of the kind of individualism implied by this version of contract theory will be provided in a later chapter.

4a.3) Subjective/Conventional Is Not Synonymous With Arbitrary/Capricious/Random/Irrational

The conflation of these is at the root of much confusion, which must be cleared up to put the above assertions in proper perspective. As previously stated, we can see the basic norms of justice as a totally subjective choice of individuals, possibly based on reason or on some ‘instinctive’ predisposition. Or we can look at justice through the eyes of the positivist and consider the norms of justice of a given society as facts which are to be studied but not questioned. Depending on the point of view, what is just then depends on either:

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-	whatever an individual considers to be so
-	what his society qualifies as just (which is a datum for the individual).

These two answers are often considered to be contradictory and mutually exclusive, but in fact they complement each other. They reflect the two positions which one and the same individual can take in matters of justice: producer and consumer. The consumer takes the position of the positivist: for him the laws and institutions are a datum, have an ‘objective’ existence, for instance for a social scientist engaged in a study and explanation of our laws and also if he is a plaintiff in a court of law. Yet the same person can be a producer if - as a politician - he defends proposals on laws or institutions of justice, or if - as a voter - he shows his preferences. As a producer, he must make choices as to what is just and unjust, must decide on norms of justice, and must accept responsibility for these subjective choices precisely because they are subjective. Such a view of normative justice seems to fit best what we know about the history of justice and it meets the conditions of a logical argument. But it also has been found unpalatable to many because being subjective, such a norm is arbitrary.

A subjective choice is ARBITRARY in the basic, etymological sense of ‘based on one's preference’ (Webster), and also of ‘based on one's judgement’, which would do even more justice to its etymology. But it also has the derived, secondary connotations of CAPRICIOUS (see Webster) or RANDOM. The basic connotation contains no value judgement about the preference which has lead to a specific choice. The derived connotations however single out a specific type of preference, namely one that is not well thought out, does not follow from a purpose, is irrational, random.

The contention that a norm is subjective only justifies the qualification of ‘arbitrary’ in the basic sense. The justification of considering subjectivity a sufficient cause for rejecting a norm usually rests on the secondary connotation of arbitrary, namely random, irrational. That connotation is unwarranted. If I like fishing for trout, nobody would qualify my decision to spend my holiday in the mountains near a good trout river as irrational, capricious or random. Yet it is a totally subjective and thus arbitrary decision. It becomes a subject for contestation only if my wife has other ideas as to a good holiday. Therein lies the cause for its bad name, that is why so many eminent philosophers associate subjective with arbitrary in the derived sense when dealing with truth and justice, while they would not even dream of doing so when talking about a practical decision by an individual.

Subjectivity and arbitrariness become problematic only in case the decisions have consequences for other individuals, which per definition is so in social decision-making. In cause is not the nature of the decision itself, but the imposition of the decision of one individual on other individuals. Not because we fear that the decision itself may be capricious, unreasoned. We often accept the verdict of chance to settle a difference, for instance by flipping coins. We reject subjectivity as a basis for social decision-making precisely because we expect that such a subjective decision, far from being irrational or random, will be directed by the perfectly rational preference of the decision-maker to favour his own and well-considered interests, which might clash with our own if the decision is imposed on us. We require a justification of a decision only if we are obliged to submit to it and that justification does not concern the arbitrariness of the decision but its effect on our interests.

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There is one fundamental principle of justice which must be established before we can deal with any other. That is the principle by which we declare that a decision made by one individual or group of individuals is to be applied to others who would not on their own have taken the same decision. If we accept that there exists no ‘natural’ norm of justice to which all must submit, if all positive justice is the work of men, then the basic problem of justice is reduced to the question: who has, or should have, the authority to take decisions that bind others than himself?

If the answer is - as proposed - ‘nobody’, if we accept the democratic principle, then we must not only accept, but must even require that the opinion of every member of society, and thus the declaration for any concept of justice, abstract or otherwise, be considered by society as arbitrary, as subjective, including its connotation of capricious. Even if a convincing argument has induced us to agree with a decision, we must accept that others will disagree. We must require that all members of society acknowledge that society must hold any norm to be subjective and therefore conventional and thus requires the assent of all its members because that is the only way to safeguard our autonomy. We must brand any appeal to a superhuman or ‘natural’ foundation of a norm to be an attempt by its proponents to evade the question of authority and to impose their norm on others by pure power. The requirement to hold all norms to be conventional also is a subjective choice, but one which contains its own justification of imposing its consequences on others, as shown in PART ONE.

4a.4) Justice Is a Matter of Authority. to Preserve Our Autonomy, We Must Establish Its Priority and Fight for It.

Many people find it hard to accept the ultimate and inescapable subjectivity of all norms and standards of justice. Totalitarian rulers have always understood that if norms and thus laws are acknowledged to be conventional, they are open for discussion. Their imposition will be seen as an exercise of pure power unless it is justified by an appeal to some ‘higher ideal’ which is assumed to be beyond human authority, such as the Bible or Koran, or some ‘scientific’ theory deriving its authority from the presumed objectivity of science, or the mother country (preferably god's own) threatened by a diabolical enemy bent on its destruction.

Nonetheless, many democrats are afraid to acknowledge the subjectivity of all norms. Their fear is that in the absence of some superhuman guardian, some ‘totally objective’ and therefore universal principle beyond discussion under whose banner all men of good will can unite, those in power will impose their decisions on others against their will. But the search for such protection is futile. If such a principle could exist and enjoy universal acceptance, it would not require any enforcement agency. All books about morals and justice find their origin precisely in disagreement on such principles. Any enforcement of a principle other than the ‘neutral’ meta-principle of rejecting the a priori authority of any specific principle will pave the road to a totalitarian society.

The basic lesson of life is that there are no free lunches. If we want our society to be viable and non-totalitarian, to be an open society which respects our autonomy as an individual, then we must have the will to give priority to such a society over other objectives, and back that will by

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our concerted efforts and power. It will not take less. If we lack that will and power, no justification of some objective norm, however logical, will prevent a totalitarian ideologist or a dictator from imposing on us his norms of justice if he has gained sufficient power. If we reject any a priori human authority above our own, we must take all the steps which are necessary to preserve that authority for ourselves.

The first step is to reject - at least for social-decision making - the claim of any principle, any concept like truth or justice, to be above human authority. I hope to have shown in PART TWO B, about information, that such a rejection is not in contradiction with today's state of scientific knowledge about the nature of man and in PART THREE A, about truth, I have argued that the autonomous existence of truth - which is a prerequisite for imposing its authority as being objective - is a chimera. If we admit that all norms in the end rest on a subjective choice, then the real, the fundamental, question upon which all answers hinge is: who should have the final say in all matters concerning the norms of society?

If, as democrats must, we reject all philosophies of justice and knowledge which attempt to remove this authority from the hands of individuals and place it in something like the Bible, Reason, Historical Contingency or a Truth Above Human Authority, then we will have to turn to contract theory which is the only theory of organising a society which by its basic axioms and structure rejects any a priori authority above the individual (anarchy does not organise).

All major exponents of the contract theory assume an autonomous and free individual as their original point of departure. An autonomous and free individual acknowledges but one final authority: himself. He may concede authority to others, but only conditionally, namely on his continuing approval. Of course, he may have to submit to some other authority if its superior power forces him to do so. But this authority is also conditional, namely on its power to enforce its decisions.

Starting from the basic choice for autonomy, contract theory generated most of the concepts which are developed in this book. The main reason why I cannot simply adopt one of its versions is that they are either outdated (Locke, Rousseau and Kant), or - like John Rawls - are in the end reluctant to accept the ultimate subjectivity of any norm of justice, probably because they are afraid to leave the actual content of justice to the judgement of individuals. Rawls attempted to determine how individuals could enjoy the fruits of having a society ordered by norms and preserve their authority while at the same time imposing restrictions on the content of these norms beyond those limitations which directly follow from the basic assumption of autonomy and a viable society. As previously shown, this ipso facto introduces a contradiction which invalidates any justification of imposing his theory on dissenters. I cannot then build on it and have to go back to the original problem of contract theory. Before doing so, the individualism implied by the respect of our autonomy must be clarified.

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4a.5) Some Remarks on the Culture of Individualism and Rationalism.

The fundamental concept at the root of modern western civilisation is individualism in its broadest sense, which is the notion that an individual:

-	is to some extent able to control his own destiny
-	has freedom of thought and action (unless constrained by the power of other men)
-	as a corollary has to bear the responsibility for the consequences of his own choices.

Before individualism, nature was conceived as one entity of which man was a part. Man was thought to be an expression of the same force, will, spirit which was believed to generate and control the entire world. The spiritual force which animates man was seen to be operative and pervasive in all manifestations of nature. We still find that concept in oriental metaphysics which conceive our material world as an expression of one universal spirit, and the individual as one perennial protrusion on its surface.

The necessity of some cosmology has always been felt, even by the most primitive caveman. The only records we have of the dawn of modern man are some artifacts, graves and paintings on the walls of caves. So any explanation of the emergence of institutionalised religions must perforce be conjectural. One which seems plausible is the necessity of unity in cosmology mandated by effective social action. Being at the hub of the concerted action of individuals, it put those controlling the cosmology at the centre of actual, if sometimes hidden, power.

As societies became larger, more complex and interdependent, the role of the common cosmology grew ever more decisive and the power it conferred on those able to monopolise it became ever more absolute and therefore alluring. In ancient Greece we find the first explicit expression of individualism, the first documented questioning of monopolisation, by individuals or select groups, of cosmology and of the legitimacy of their authority in this field. Socrates marks its coming of age by claiming the right of any man to apply his reason to the critical evaluation of all human statements, however evident they may seem at first glance. He expressly excluded religion, yet the simple claim of being entitled to our own opinion and the licence to question the absolute authority of any individual in any field of thought was enough to condemn him to death. Socrates understood that this verdict itself was the most powerful and definitive exposure of the illegitimacy of the monopolisation by individuals of cosmology and of the human mind. He was given ample opportunity to flee, but by accepting death he drove home his point.

The religious counterpart of secular Greek individualism was born in a crib in Nazareth. The metaphysical revolution of Christianity is the notion that the religious discourse is essentially one between God and the individual. It claimed for the individual the exclusive authority in his relation with God: I am the way! God is the only judge of our relation with Him. Human authorities may claim our money, may establish and enforce laws, but no man can claim our soul nor tell us what to believe. His contemporary monopolists of cosmology, the priests, forced the secular authority to nail Jesus to the cross. Yet in his very name, the Christian church later had heretics burned.

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With Socrates, the seed of individualism was sown in the western mind. It took a long time to mature, but finally burst into the open in the Renaissance. And after a long and bloody struggle, it achieved political reality in our secular democracy.

Individualism is a notion of reason. To see ourselves as an entity, as an ‘I’ separate from the rest of the world requires the faculty of reflection, of conscious thought. Reason enables us to fully exploit its implications. Only after being coupled to rationalism did the perception of ‘I’ become the driving force of our societies. Descartes (‘Je pense, done je suis’) set the ball rolling. It was caught by a plethora of philosophers, culminating with Kant who - in my view - carried it as far as was possible without today's insight into the nature of life and information.

The reason of the individual has to bow only to the verdict of reality as expressed by our experience. It can question the edicts of religious authorities. It gave scientists the freedom to explore all of reality and to build today's empire of human power. The success of reason, freed of its shackles by the concept of individualism, strengthened its grip on the western mind.

Note that the above only intends to emphasise the relation between reason and individualism, but implies no causality. Descartes could also have said: ‘Je suis (un homme), donc je pense’. And it took reason to conceive individualism.

Note also that this individualism by itself only proclaims the individual to be the highest-level entity in our known world in terms of mental power, of information processing capability. It invalidates all claims to any a priori authority above that individual, by other individuals as well as by their empirical or metaphysical concepts. It enlarges - to the maximum possible - the space within which an individual can legitimately operate. That space is limited only by the power which an individual can muster to defend it against intrusion, mainly by other individuals. But it says nothing about how the individual is to use that space.

This book deals with the relation between the individual and the society. In the above abstract and general connotation, individualism provides no answer to questions like ‘what is an individual’, ‘what is its relation to the world around it’, ‘how should it use its freedom,’ etc.. Yet anytime society takes and imposes a decision on its members, this implies an answer to these questions. The individualistic views of man which are explicitly or implicitly used as a foundation in today's social science mostly derive from philosophies at least a hundred years old. Reason played the star role in the emergence of individualism and in the success of technology which is based on the application of reason in natural science. It is not surprising that rationalism - in the form of utilitarianism - became dominant, at least in terms of practical impact.

The age of a theory is not by itself a legitimate cause for rejecting or accepting it. But in times where changes are so profound and rapid, the fact that a theory is more than half a century old should certainly warrant a critical appraisal. Very likely, theories which are that old are prone to generate contradictions with today's state of knowledge and with our daily experience. Such theories cannot then provide a reasonably general and effective paradigm to serve as an integrating focus for our efforts in various fields. Various social theories either fail to state explicitly the basic view of man on which they are founded, or construct a theoretical man like homo

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economicus who is totally unrelated to what the current state of other fields of science can tell us about him. All theories which start from some a priori, ‘revealed’ ideal of man contain a totalitarian element if applied in social decision-making.

Homo economicus as well as classical liberalism are founded on utilitarianism, which sees men as individuals having an overriding motivation to further and protect their own interests. For reasons of convenience, that interest has since been reduced to increasing one's wealth as measured by the ability to obtain goods and services which have a money price. Whenever confronted with the inconsistencies which such a narrow view generates, the definition of wealth is ad hoc expanded to include additional elements which are thought to be necessary for man's wellbeing; even then no clear and operational definition is given for this well-being. The current theory which sanctifies the market economy thus evades the obligation to make explicit a view of man from which one can deduce the conditions of that well-being. It thereby immunises its conclusions against falsification.

Money wealth has become the predominant concern in our western democracies, but not because of the merits of utilitarianism. It succeeds by default because the competing philosophies are incompatible with everyday's practice in today's scientific civilisation. A moral theorist who considers it below his dignity to take account in his theories of the available mainstream scientific knowledge, remains largely irrelevant. Or - as a demagogue appealing to sentiment - he spawns monsters. Most inroads by scientists into the field of moral theory seem mainly motivated by their desire to subjugate moral theory to the scientific discipline which happens to be theirs.

Most philosophical problems and paradoxes of the last three centuries arose because science had not yet developed to a point where it could provide any workable notion of what reason is and of its place in the total information process. The achievements of reason are evident: it enabled man to break free of spiritual oppression and - through its application in science - gave him an unprecedented mastery over his material circumstances. No wonder we have endowed reason with a status to which it has no claim.

In their quest for an alternative, authors who noted the ravages resulting from that kind of absolute rationalism and of the application of utilitarianism in rabidly capitalist societies have resurrected or created concepts incompatible with the rules of any scientific argumentation. As - until the seventies - there was no scientific alternative, they also are to be excused. But today the knowledge we have about what life is, and about the role of information in that process, provides us with a more differentiated view of reason which must be incorporated into any theory about man and his society, into any moral theory which can hope for relevance and effectiveness in today's world. Reason's main role is probably similar to that of the controller in a modern firm, superimposed on the other activities which are the basically productive ones. Conscious and reflective thinking is but a thin layer of analytical information processing channelling the bulk of information processing which is unconscious and holistic, as emphasised by Michael Polanyi four decades ago.

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No one can deny that individualism and rationalism have proven outstandingly successful in improving the control of man over his destiny. They also have in the process generated intellectual problems and created gigantic - and by now glaringly evident - dissonances in man's relation with his environment and with his fellow men. Yet to simply reject individualism and rationalism and to embrace an antithesis is a naive and unwarranted reaction. The correct one is to identify the errors of the current view and to correct them. The purpose of this book is to provide a possible starting point and to set the ball rolling. Here follows a sketch of how the view of man which was developed in part two about life and information could provide a foundation for a concept of justice which can be integrated into our modern world, and especially into our scientific one.

4a.6) Justice: Man's Alternative to Instinct.

To adequately fulfil its function in today's society, a theory of justice must be susceptible of integration with the prevailing scientific knowledge about what man is, must take into account what science tells us about man and life. We have presented some of these implications in Part Two. Below I will sketch a view of justice that meets this requirement. Obviously I could not on my own develop that view into a theory which meets academic standards. Such a theory must draw on many fields of science, and experts in all of them may find plenty to criticise in this paragraph. I will gladly forego my view for a better one, on one condition. Criticism must be in the form required by democratic argumentation (see Part Five) and be constructive: I will trade my view only for a better one. Note that this view of justice is not part of the arguments on which the presentation of my contract theory relies. It only explains how the theory of justice presented in this book could be integrated in today's scientific culture. Therefore the reader will be spared discussions such as how to define ‘better’ in connection with a theory of justice.

Theories which introduce biological elements into social theory are prone to be accused of reductionism (in its pejorative sense of reducing complex systems to simpler ones by leaving out essential elements), and often rightly so. In Part Two it has been explained why that reproach does not apply to the functional view presented in this book. It does not reduce man to an animal. In addition to the elements common to all living beings, it points out the concrete and fundamental way in which man differs from any other form of life.

All living beings exist by exploiting external resources, often other living beings, and are exploited in turn. All are part of systems of varying complexity which can survive only if they do not exhaust the resources on which they depend. Beings devoid of reason must therefore have some mechanism which ensures such economy. The symbiotic relationship between a predator and its prey presumes that the predator does not devour all potential prey. The speed of a cheetah is superior to that of the antelope it hunts but its stamina is insufficient to keep up its speed for more than a few hundred metres. It will mostly catch antelopes which are weakened by sickness or not alert enough to notice the cheetah before it gets close enough to catch it in the one burst of speed of which it is capable. Healthy antelopes in groups (= many eyes) and keeping to open ground therefore do not risk extermination by predators. Social animals have instincts which regulate their interrelations and prevent competitive situations from degenerating into a fight to death. They also have instincts furthering cooperation, like defending their society against intruders, organising leadership etc.

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Such constraints do not work for man. Instinct is not an adequate constraint for beings which can and do overrule their instincts because they are conscious of it and are endowed with reason and imagination for devising alternative actions. And man overcomes his physical limitations by creating instruments. There are no ‘natural’ checks on his ability to exploit his environment to exhaustion and his fellow men to death. To survive as a species, man must keep his capabilities in check. The only means to achieve this is the very same information processing capability which gave him such unlimited power, namely reason and imagination. One of Kant's merits is to have shown that reason contains - in addition to the principles of our ability to know - the principles on which we can build imperatives for keeping our power of action in check so as not to impinge on the existence of fellow beings and of our natural environment. Ethics, morals and justice function as the human counterpart of the controls on exploitative behaviour which in animals are provided by the instincts and physical limitations.

The basic feature which distinguishes normative justice from the general set of morals is often perceived as its ‘distributive’ character, some form of equality or - in the case of Rawls - fairness. While equality or fairness may be elements of a conception of justice, they do not seem to be the fundamental characteristic which sets justice apart from other fields of morality. If I give my wife a bigger part of a cake because I love her, do I commit an injustice toward myself? Clearly, I do disadvantage myself and the resulting distribution is incompatible with equality and fairness. Yet we will consider an unequal partitioning of the cake to be unjust only if my wife had got the smaller part, and then only if she did not want a smaller part, for instance because of a diet. Justice may be that part of morals which deals with relations between individuals, and it may include equality and fairness, but clearly there must be more to it.

Love also deals with relations between individuals. What distinguishes justice from other precepts of morality involving relations between individuals such as love or good manners? There seems to be only one feature which is not essential to any other field of morals, yet which is an integral part of justice: we expect the norms of justice to be enforced by society. If I regularly treat my wife unfairly, if I always take a bigger slice for myself, she may not turn to a judge. But she will consider my actions to be unjust and in principle to be forbidden. She will refrain from appealing to formal institutions of justice because of practical reasons, but she might enrol the force of social control, for instance by threatening to expose my behaviour to friends and family. Justice then is that section of morals which deals with the relations between people and which - barring practical impediments - is expected to be enforced.

This view of man and of the functional character of justice does not lead to Herbert Spencer's social Darwinism. On the contrary. What distinguishes man from the rest of the living world is precisely that he does not have to rely exclusively on the mechanism of selection of individuals on the basis of their genetic endowments. That mechanism is not a law in the same sense as the second law of thermodynamics. Evolution, as explained in Part Two, it is a historical process which - once set in motion - tends to reinforce itself; it applies only to the participants in that history. It is a specific application of the laws of nature, not a law itself. We have also mentioned that in nature, the ability to cooperate is a feature which is at least as prevalent as the ability to compete and which usually is more effective. Nowhere is the success of cooperation more evident than with man.

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The means specific to humanity and by which it achieves its enormous power is not the sum of the physical presences of its members nor the ‘knowledge’ recorded in its genes, but the accumulation of externally recorded knowledge available to all - culture - and the accumulation of culture's material embodiment: capital goods.

Before being able to contribute to culture, an individual must exist, and therefore be spared from aggression by fellow men. So the very first job of justice is to guarantee coexistence. To that extent, justice is man's counterpart to the corresponding instincts of animals, for example the inhibition of a wolf to bite into the throat of a rival which - by exposing it - has acknowledged defeat. Justice is also an indispensable element of the institutions required by the complex cooperation which is the foundation of our culture and civilisation.

NORMATIVE JUSTICE THEN IS THAT SUBSET OF MORALS WHICH REGULATES BEHAVIOUR BETWEEN HUMAN INDIVIDUALS AND GROUPS OF INDIVIDUALS, AND WHOSE NORMS ARE EXPECTED TO BE ENFORCED. ITS FUNCTION IS TO ENSURE COEXISTENCE AND COOPERATION.

The ultimate objective of that cooperation must always include the improvement of the chances of survival of life, humanity, society and individual, in that order. At least that is the order as seen from a larger perspective. The individual may reverse that order. Yet reason can tell him that as a mortal individual, the larger perspective is the one which can give some sense to a life which otherwise would be a simple incident. The larger perspective also can be integrated into most prevailing religions. It will conflict only with the claim of authority by human leaders of institutions which want to monopolise these religions. The larger perspective could be a philosophy which has the potential to generate the enthusiasm, solidarity and commitment which purely individualistic and utilitarian philosophies so notoriously lack.

Our view of man as an autonomous individual is an individualistic theory, but this view includes the social dimension as an integral part of that individual. This two-faced Janus (to quote Koestler) must constantly meet the challenge of accommodating both his individual interests and his participation in the venture of creating and strengthening his society. Given the confusion about individualism, autonomy and freedom, a definition of these concepts as used in this book is in order.

4a.7) Individualism, Autonomy and Freedom.

4a.7.1) Individualism. The pure contract theory presented in the next chapter (4a.8) is an individualistic theory. In a previous chapter (4a.5) some remarks were made about the culture of individualism. We will now expand on that concept and explain why it is a morally justifiable (not justified!) point of departure for a theory of justice.

In Part Two, man has been described as a social being with two built-in tendencies: self-assertive and integrative. He is motivated to further his own survival and propagation, yet - as a social being - he can hope for success in this endeavour only as part of a social system which in turn

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depends for its viability on individuals who are motivated to make the sacrifices needed to support the system. In that same part it has been shown that is possible to explain our conscious ‘I’ without recourse to any metaphysical concept like an immortal soul (without asserting that a soul does not exist).

‘Individualism’ has two connotations. It can refer to the individual as decision-making subject, including both his self-assertive and integrative tendencies. Or it is used to refer only to his self-assertive tendencies as opposed to his integrative ones. That last connotation is the pejorative one, and one we reject. An individualism which refers to only his self-assertive tendency implies a mutilated human being, amputated of that which distinguishes him most from the rest of creation: common culture. Also, this connotation is superfluous as we have other terms like egoism which are better suited as a symbol for the self-assertive tendency alone.

Libertarian philosophers and social scientists unfortunately often fail to distinguish between the two connotations. Stating that the basic purpose of a society is to serve the individual then is often interpreted as meaning that society is to serve only his self-assertive tendencies. That is an error.

The liberal, democratic individualism implicit in the contract theory which we will develop sees the individual human being, with both his self-assertive and integrative tendencies, as the highest-level autonomous decision-making entity in our world. At any higher level of decision-making, for instance a state, decisions are de facto always taken by individuals or a group of individuals. Democrats hold that the individuals taking these decisions differ from those who are affected by them only by their place in the decision-making process and that any authority they may have is based on power. The material difference between democracy and other types of social organisation resides in the process by which that power has been obtained.

In social decision-making, democratic individualism does not acknowledge any a priori authority above the individual. The decision-making authority which individuals or groups have over others is seen to follow from circumstances and to be reversible by a change in circumstances. It acknowledges that some men may be better equipped or motivated than others for leadership, bu it rejects the notion that we can identify any man to be predestined by nature or God to take decisions for others, or to follow decisions taken by others. It does not deny that there may be an all-mighty God and it accepts that those who believe in Him will not question His decisions. Individualism takes one unequivocal and non-negotiable stand: not being omniscient, no mortal man can claim to know what God's decisions are with sufficient certitude to justify the imposition of their view on others. To do so is to play God, is blasphemy, is a usurpation of a power which pertains only to God. Individualism also denies any authority to ‘society’ as an abstract concept. In its view, social decisions are always taken by an individual or a group.

Clearly man is to a large part a product of the culture in which he grew up. However homogeneous this culture may be, we always find differences between individuals. By his faculty of reason, man can become conscious of the influence of culture. If he so desires, he can counteract it in case that culture promotes behaviour which is detrimental to his interests as an individual. He can also become conscious of the extent to which he is dependent materially and psychologically on society. If so, he will strive for a culture which does justice to both aspects

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of his individuality. Most humans attempt to further their own interests while at the same time gaining the love and respect of their fellow men by making sacrifices for their family, peer group, country, and - in today's global village - the whole living world.

A main contention of this book is that we have failed to develop - in terms of concepts, theories and institutions, in short of culture - the settings in which his integrative tendencies can develop in a human, rational way. Instead, they are mainly exploited by business, politicians and other fellow men to their own ends.

4a.7.2) Autonomy. As defined in this book, individualism rests on the notion of autonomy. We consider a living entity to be autonomous if it is able to create its own information process and thus initiate and take decisions, for instance on what is good or bad. Obviously, a human individual fits that description. (Note that this use of ‘autonomous’ is etymologically correct, but differs from Kant's, see Volume Two: ‘Kant's Legacy’, p. 313).

The human society has been endowed by some philosophers and scientists with a higher autonomous existence amenable to the methods of empirical science. Clearly societies are living systems; they grow and they decline. But there is no information processing and decision-making function in a society which cannot be performed, albeit at a lower level of efficiency and scope, by a single individual. The knowledge embodied by the culture of a society has any meaning only for its constituent entities, human individuals who have been initiated in its meaning and use, and no meaning for anything else such as a society. By contrast, the knowledge of a human individual has a meaning for that individual even if it has none for any of the cells making up that individual.

Individualism as used here is based on this denial of any autonomous information processing entity in society. It holds that all information processing organs in a society are directed exclusively by the objectives of the individuals participating in that information process. Social decision-making institutions do not develop any symbols, do not give any meaning to any information processor which - by nature - is above and beyond the information process of the individual member. Only individuals which make up these institutions have that power. Rousseau's ‘volonté générale’ refers to some aggregate of the will of the members of society. (As mentioned in Volume Two, ‘Rousseau’, p.332, that aggregate is not a simple addition of individual ‘wills’; it is the result of a complex, interdependent and dynamic, in short a holistic, system: our culture.)

The notion of autonomy is not one we are likely to encounter in biology. For it becomes relevant only with beings capable of questioning whose point of view or objectives direct a given decision process and who can take action if they find that the objectives directing a certain information process are not their own. That requires conscious and reflective thinking plus imagination.

Contrary to Kant, the nature of these objectives is not at issue here. In social decision-making, autonomy is respected as soon as the objective is that of the information processing individual, and not that of another individual. It does not matter whether that objective is rational or whether it is an irrepressible inclination, like drinking or smoking, which Kantian reason would discourage as ‘heteronomy’.

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The notion of autonomy as the right to our own principles and to take our own decisions has one logically inescapable corollary. We are responsible and can be held accountable for the resulting consequences unless we can prove that the decisions did not result from our own decision-making process, that somebody else has substituted his motives or knowledge to our own through coercion or deception. The currently fashionable cry for emancipation is an empty slogan unless it is coupled to responsibility.

4a.7.3) Freedom. The ability to exercise our autonomy is called freedom. No word has been more abused. If - as is often done - we equate freedom with a general absence of constraints on the ability to realise our choices, it is a chimera. A general absence of constraints is contradicted by all experience, by everything we know about the physical world we live in. It is easy to see why that generalised notion of freedom is so popular: it enables anyone to parade his pet project under the flag of freedom, a flag which has an appeal far beyond any other and is invested with the highest moral imperative. Its very ubiquity and unanimous approval robs that concept of freedom of any discriminatory power and enables even totalitarian oppression to coopt its name.

To include - as socialists did - ‘freedom from want’ under the concept of freedom has the ‘priceless’ consequence that social decision-makers can evade the moral aspects of choosing between freedom, equality and efficiency. (See the chapter ‘Justice versus efficiency’, p. 153) Diluting the concept of freedom to include freedom from want licences the decision makers to present it as a choice between two goods on an equal level of morality and reduces freedom to a problem of economics. That makes it negotiable in terms of money. They thus avoid the discussion about authority which is inevitable as soon as (freedom as) autonomy is in cause.

We do have to balance the cost of regulation, which always involves a loss of freedom of action, against its advantages in terms of wealth, of freedom from want. That necessity follows from the objective reality in which we have to live, and which is beyond control and authority of any individual. Balancing the loss of options plus the cost of implementation inherent in any regulation, against the advantages which we expect from that regulation is indeed a matter of economics, of maximising total utility.

But freedom is not a good which can be priced in a market for goods and services. As any modern economist will acknowledge, utility - as the value which a consumer attaches to something - is a totally subjective concept which defies any a priori determination. Utility becomes measurable in form of a price only ex post in a free exchange of goods, and only under certain very specific and seldom realised conditions. Freedom never meets these conditions. There is then no objective way to balance the loss of freedom against a gain in wealth, and any such decision rests solely on the authority of the decision-maker. Who should have the authority to decide on this balance? That clearly also involves a matter of freedom which transcends not only economics, but any other process of social decision-making: it is ‘a priori’ in relation to that process. The question of authority therefore has a nature all of its own, and must be decided upon before any specific economic decision can be legitimately taken by society. Anyway, the notion that freedom is negotiable is repugnant to many, certainly to me.

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There is one concept of freedom which is both applicable in practice and has a very definitive discriminatory power. That concept is the rejection of any a priori authority over us by any other individual. It contains an element which only ‘autonomy’ can adequately describe: that we be our own ultimate authority in terms of our objectives, purposes, opinions and norms, that our information process is not directed - against our will - by the objectives, purposes and opinions of other individuals. Because the right to our own objectives applies to any decision taken by society, whatever its nature, that right must be ‘a priori’, must be established as a criterion against which to evaluate a decision before such a decision is taken on a concrete subject. It therefore is also beyond compromise. To acknowledge its priority over any other decision by society, and to defend that priority with all the power we have, is the only effective weapon against totalitarians and dictators. As will be seen, that concept does not preclude compromises on any practical matter. It accommodates the delegation of authority and the establishment and enforcement of decision-making procedures. It requires only that these be established in a procedure to which we agreed of our own will.

Individualism, autonomy and freedom then are intimately related concepts, all based on the rejection of any a priori authority over the human individual in social decision-making, and the following pure contract theory of justice is entirely founded on the acknowledgement of the subjectivity of that choice.

4a.7.4) The consequences of our definitions. Individualism (as an expression of our autonomy) and freedom (as the rejection of any a priori authority in social decision-making) are negative concepts: they do not define in any way the individual nor his actions; they only define the space within which the individual can act if he chooses to exercise his autonomy. The positive element of the definition of democracy is provided by the other element: his will to live in a healthy society. Autonomy and a healthy society are objectives which reflect the two dimensions of man: self-assertive and integrative. The only way to combine the two objectives and dimensions is a society based on a voluntary agreement which - to be viable - must be enforceable. An enforceable and voluntary agreement is called a contract. Only contract theory can do justice to both aspects of the individual.

In actual situations the two objectives and dimensions may clash, and a compromise must be found. From what has been said up to now, we cannot a priori deduce whether any specific decision on a compromise will be just. But we can deduce two requirements which such a decision must meet:

-	it cannot follow from an exercise of any a priori authority
-	it must not be detrimental to the viability of the society.

Societies built on the above concepts of individualism, autonomy and freedom can vary as widely as human individuals differ from one another. They can in principle be socialistic or capitalistic. How they care for their poor is dependent only on the perception of its members of the necessity to do so. The extent to which a society respects the individual is dependent on the will, effort and proficiency of its members to preserve their autonomy in face of a natural tendency of the individuals who make up the governing body to further the group to which they belong, to turn government into a leviathan.

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If we see individualism as expressing a man's will to preserve the ultimate authority in human affairs for himself, if we acknowledge that this individual is also a social being, then the opposite to individualism is not any specific structure of society such as socialism or capitalism. The one thing which is incompatible with individualism is the claim of the proponents of a certain type of society that it is legitimate to impose it on dissidents by force. The only alternative to individualism is dictatorship and totalitarism.

At their origin all socialist theories were also individualistic. The very objective of Marx was to free the individual from the constraints which the capitalistic system which he knew in his day placed upon the self-realisation, the autonomy, of the workers. Socialism came into conflict with an individualistic view of man only when its adherents proclaimed it to be the only system under which individuals could be really free, and then derived from such an absolutistic chimera the legitimacy of imposing it by force and by dictating the terms of the balance between the two tendencies of man. That aberration is not the exclusive property of what we called the ‘eastern bloc’. The same hubris struck many so-called democratic or pacifist socialists in the west. It is at the root of today's disarray of what we call the left. In the name of defence against totalitarian socialism and of freedom (of enterprise). Today's ‘right’ has lend legitimacy to an equally totalitarian tilting of the balance towards the other direction, justified by a misguided perception of an omnipotent market economy.

Individualism is often identified with conservatism. In fact there is no relation at all. The conservatism of today's moral rearmament, of the Jerry Fallwells, is not individualistic but theocratic. And the utilitarianism resurrected by the secular right is an eminently un-individualistic theory which a priori places wealth above the authority of the individual who might have other priorities; poor Adam Smith!

To navigate between the Scylla of totalitarianism and the Charybdis of an egotistical, utilitarian individualism, we must recognise that the nature of the human individual comprises both a self-asserting and a social, integrating, dimension. We must understand that the only logically correct definition of individualism is one which does justice to both dimensions. We must acknowledge that the individual is the ultimate decision-making entity, fighting to preserve his freedom and understanding that - to do so effectively - he has to grant the same right to all other individuals. Freedom has then achieved a concrete and operational content. The resulting society will be as idealistic as its members care to be, not more and not less.

The above does not claim to provide a factual, objective, basis for a choice for democracy. The only factual and totally objective foundation of democracy is the aggregated power of the individuals choosing to live in such a society. The above arguments intend to justify the expectation that many will indeed make that choice, and to convince the reader that the concept of man which is at the basis of that choice can be integrated smoothly into today's state of knowledge and culture in western democracies.

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4a.8) A ‘Pure’ Contract Theory of Justice.

Summary of the preceding chapters:

-	To be viable, a human society needs to establish and enforce norms to replace and supplement instinct.
-	The apparatus of justice is the most important tool in a modern human society to organise the relations between its members.
-	Evaluating and accepting a norm of justice is, as with all norms, subjective.
-	The primary criterion for that evaluation is the kind of society we strive after, is the purpose we have in mind when organising our society.
-	That purpose will always contain one element: the will to live in an organised society.
-	To distinguish a democratic society from other ones requires a further element. In a democratic society that is the respect of the autonomy of its individual members, that it will not grant to any individual or group an a priori authority over others. That is a subjective choice. The number and the concerted power of all individuals who share that choice however are a fact.
-	a viable society and respect of autonomy together provide a criterion, a norm, for evaluating the institutions of justice and their decisions.

A norm, a law, must be enforced and thus puts limitations on the action alternatives open to individuals: it restricts their freedom of action. There is just one way to ensure that such a restriction does not conflict with autonomy: it must be accepted out of our own free will. We will voluntarily accept a restriction whenever we expect that, if applied to all, we will be better off in terms of achieving our individual objectives than in a society without that restriction. The one institution which at the same time constrains the behaviour of individuals yet does not encroach on their freedom is a contract signed by all contracting parties out of their own free will. Designing and policing such a contract is the problem of democracy. The norms laid down in that contract are the norms of justice by which we must evaluate the institutions and decisions of that society. The theory of justice which follows from these considerations thus is properly called the contract theory of justice.

The current contract theory is ineffective. It has been developed in England by John Locke (around 1690), redesigned in France by Jean-Jacques Rousseau (1762), taken up in Germany by Immanuel Kant (1785/1796) and revived (in 1973) by John Rawls in the USA. Each of the above protagonists of contract theory, plus Nozick and Buchanan, are given their due in the Volume two.

The history of the contract theory of justice is remarkable for two reasons:

-	it is widely acknowledged as the only theory which permits a rational discussion of the fundamental principles of justice and thus rescues the discussion about them from dogmatism or nihilism
-	except for a very short period during the French Revolution it has never served as foundation for actual laws and institutions of justice.

That the theoretical impact of contract theories is matched only by their practical ineffectiveness is due to one or more of the following shortcomings:

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-	A view of man and his reason which does not conform to what we know today
-	Neglect of the social nature of man and the reduction of individualism to egoism
-	Reluctance to acknowledge the inevitable subjectivity of all norms which tempts the authors to fill in the terms of the contract on their own authority
-	Failure to express the basic tenets of the theory in terms which are simple and unequivocal enough to be translated into operational rules and procedures.

All contract theories are based on freedom, and all are plagued by the paradox mentioned in Part One: if we do not specify any further objective and purpose besides wanting to live in a society respecting the autonomy of its members, then all terms of a contract accepted by such a society must be considered just, however much they may be in conflict with any moral theory and with any notion of justice we may entertain. Conversely, as soon as we specify any rules or principles which are not deducible from the two basic ones, we must impose by force and against their will such principles and rules on those who dissent, thus violating their autonomy. As shown in PART ONE, this paradox disappears if we recognise that the two aspects of our democratic criterion form one indivisible moral criterion of the highest order. In the next chapters, it will be shown that - if correctly and consistently applied - it justifies the prohibition of all terms of the contract which we feel to be in contradiction with our innate sense of justice... provided that this sense of justice has not been vitiated by a totalitarian ideology. But we must accept that per definition a democratic society cannot be more moral than its members.

PART ONE also dealt with another apparent paradox: the unanimous voluntaiy acceptance of the contract is contrary to all our experience in human affairs. It is shown that there is a way out, that there is one, and only one, contract which has the property that we can legitimately enforce its terms on all members of society, including dissenters, on the grounds that the very act of rejecting that contract justifies the use of force on dissenters (and thus solves the problem of compliance which Rawls left unanswered). That contract provides the basis for what I will call the PURE CONTRACT THEORY OF JUSTICE. This theory enables us to derive all principles and criteria, all norms, for taking those decisions which are necessary for a viable society worthy of that name while respecting the autonomy of its members. How will be explained further on.

Before we engage in that venture, let us briefly dwell on the function of justice: to regulate society. For classical contract theory, and for today's rightist libertarians, the main function of such regulation is to forbid the use of force by one individual against the other. It must prevent a destructive free-for-all where most of the energy of an individual is spent to defend himself and his possessions against other men. We need an apparatus of justice to ensure coexistence.

Rawls correctly points out that it is cooperation between individuals which has enabled men to create an enormous surplus over and above the productive capacities of each individual. That is in accordance with the part about life and information (p.47 and 81) asserting that the most characteristic means by which man engages in the struggle against chaos is a gigantic cooperative venture made possible by a new level of information processing, culture, which pools our knowledge. That cooperation cannot even be imagined without the coordination of behaviour which is provided by justice which therefore, besides coexistence, also must ensure cooperation.

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The objective of forming a society will thus be specified as ‘the will to form a society which ensures coexistence and cooperation’.

4a.9) The Principles of Justice in Pure Contract Theory.

(By necessity, the following chapters will repeat, in different terms or perspective, much of what has been said in Part One.)

A main cause of the deficiencies of previous contract theories seems to be the lack of input from ‘reality’, of experience in designing contracts. The first step in any contract is to define the common objective of the contract. That is why that objective has been defined here at the outset: a democratic society ensuring coexistence and cooperation, translated into a viable society respecting the autonomy, the subjective equality, of each of tis members. The theory of this book is called ‘pure’ because it involves no other element which may distract from this objective and therefore must be acceptable to all who share it.

The next step is to deduce from that objective the basic clauses of the contract. In the case of a society, these will be the general principles of justice which will serve as a basis for more specific laws and decisions. They are:

1)	All decision-making by society must respect the subjective equality of all members of society. This principle must rule the deduction of any other principle of justice. It leads to what is often called ‘the golden rule of justice’, that in social decision-making the individuals must be interchangeable as subjects, and that distinctions can only be made on objective grounds. ‘Before the law, all are equals’, ‘all voters are to be given equal weight’, etc.
2)	The second principle which we derive from our objective is that all judgements, laws, institutions, all positive justice, must further coexistence and cooperation. Jealousy can never be a legitimate argument for or against a proposed judgement. No one can have an legitimate objection to a decision which is to the advantage of others and leaves him at least as well off.
3)	No member of the society can legitimately object to any rule, norm or institution which can be shown to be vital to the existence of the society, provided that the decision is taken in a procedure respecting the first two principles.
4)	If society legitimately claims any sacrifice of its members, or by its own comes into any advantage or generates surplus, such sacrifice or advantage should be equally distributed over its members unless agreement can be reached in a democratic procedure to do otherwise. This principle, which we could call the principle of objective equality, is subordinated to the previous principles because it is deduced from them and accepts exceptions if taken in a democratic procedure or if there is an objective ground for invalidating it; the first three principles are absolute. It presumes the existence of a procedure ensuring compatibility with the first three principles whenever we have to decide to exact a sacrifice, to establish an entitlement to a share of surplus or to justify a deviation from the principle of objective equality.

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The second principle is the main reason why pure contract theory can avoid the paradox between the rule of unanimity and the necessity to take decisions. For it enables us to reject as illegitimate all objections which are not grounded in the violation of a legitimate interest of the dissenter. Consequently, as soon as someone has made plausible that he benefits from a certain decision, all we have to do to legitimise that decision is to show that IT IS NOT UNJUST, that it does not violate the legitimate interests of anybody else. We thus can avoid the necessity to define what is just, which at best would lead us into a morass of discussions on details and often is logically impossible, and replace ‘just’ by ‘not unjust’, which is well-defined by our democratic principle: any decision that does not violate the autonomy of the individual or is shown vital to society.

The four principles share the property that they mainly define boundary conditions of decisions or of the process by which they are taken. Only in rare cases, usually in a small group, can we - when confronted with the necessity to take a decision - deduce from these principles which decision is just; an example would be to divide a cake: the first principle requires that we should give everyone an equal part unless someone has a legitimate claim to a larger share. Yet even if we were able to decide what is just, we will need procedures to insure that the decision is correctly implemented. If we have to divide a cake between a number of people and decide that justice requires that all share equally, we must find and agree upon a method to carve up that cake into equal parts. Procedural justice will always be required; it is the basis of contract theory.

4a.l0) Three Types of Procedural Justice.

Following Rawls, we can distinguish three types of procedural justice, depending on whether we can:

a)	a priori define what is just in a certain case or what is not
b)	devise and agree upon a method which insures that the decision taken will actually correspond to such an a priori justice or at least cannot be branded unjust.

The three types are:

1)	Perfect procedural justice (a + b)
2)	Imperfect procedural justice (only a)
3)	Pure procedural justice (only b)

A fourth combination is (neither a nor b). Decisions of that kind do not belong to social decision-making in a democracy and anyhow seem difficult to even imagine.

1) Perfect procedural justice. If we both:

-	know what is a just decision (through deduction from our four principles)
-	have a procedure ensuring that the decision we have taken will meet this criterion,

then everything is well in the land of justice, and we properly call this case one of ‘perfect procedural justice’. An example would be the sharing of a cake between two brothers. The just decision is that both receive a piece of the same size. And there exists a procedure to ensure that neither can complain that his piece is smaller: let one of them carve up the cake and let the other

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choose his piece. This classic example illustrates that democratic justice does not require that decisions meet some a priori criterion of justice; a decision qualifies as just if nobody can have a legitimate complaint against it. The brother carving up the cake will never succeed in dividing it in two pieces which are equal down to the last crumb; the procedure will not achieve the theoretically just distribution. But by this procedure we have achieved that whoever gets the smaller piece can blame only himself, and thus has no legitimate cause for complaining.

Incidentally, if we want to apply this procedure in practice, we would still be faced with the problem of deciding who has to cut the cake. Presumably, neither will volunteer because whoever does can never gain, only lose, at least in terms of cake. Unless one of them volunteers, we will have to find a procedure to assign one of them to that task, and that procedure must respect the democratic principle; flipping coins would meet the bill. The brothers might agree to such a procedure as an alternative to endless bickering. Flipping coins is, as explained below, purely procedural justice. We see that perfection is not really of this world, and that perfect procedural justice will usually require the support of purely procedural justice to make the transition from theory to practice.

2) Imperfect procedural justice. More common is the situation where we know what would be just, but have no procedure that insures that we indeed make the right - that is just - decision. That is the usual situation in a criminal court. The law tells us that a certain act is a crime, and that the culprit must be punished. The problem is to decide who is the culprit and what exactly he is guilty of. To that effect we have developed procedures, in Anglo-Saxon countries the judgement by jury. We have no guarantee that such a judgement will always be correct. On the contrary, we know that in a substantial number of cases the culprit will go free for lack of evidence that can stand up in court. And it can happen that somebody is punished for a crime he did not commit. In western democracies the system is very much biased towards reducing the risk of erroneous conviction to (hopefully) zero, which correspondingly increases the chances for a crime to go unpunished. Quite logically, we will call such justice ‘imperfect procedural justice’.

Because he did not deal with the de factii, Rawls did not mention that in this case procedural justice is imperfect only as to the ‘de factii’ associated with any concrete judgement. The imperfection reflects our inevitable fallibility described in the part about knowledge, and I will not expand on this subject here. Perfect procedural justice can be ‘perfect’ precisely to the extent that we have been able to avoid the necessity of establishing facts, for instance by the expedient of laying the burden of proof on the shoulders of a person who cannot complain if he got the facts wrong.

3) Pure procedural justice. Both perfect and imperfect procedural justice assume that we that we have the norms, criteria etc. to know what is just. That is so in positive justice, in the daily functioning of our apparatus of justice; their main problem is to establish facts. But our subject is normative justice and we want to establish whether a law is just or not. As explained in the previous chapters, we have very few such criteria, certainly not enough to decide on what would be a just outcome in most actual litigations, even if we got the facts right. Problems like the sharing of a cake between two brothers are an exception, not the rule.

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Let us stick with the problem of carving up a cake, but put it in a wider setting: the annual meeting of the local tennis club. It is well attended, some 86 members showing up. One of them runs a bakery and presents a cake to the club. What to do with it? Cutting it up in 86 pieces is impracticable. A lottery is proposed, whose proceeds will fatten the kitty of the club. One member wins the cake, all others get nothing. An eminently un-egalitarian outcome, yet nobody complains. The outcome is accepted because it was produced by a procedure which was previously accepted as just. Justice was done - in the eyes of the members - but it was ‘purely procedural’. In other words, if everybody agrees to accept as just the outcome of a certain procedure, then nobody has a legitimate argument for contesting such an outcome, even though we have no grounds for labelling it just, (nor, for that matter, unjust). That is why we call it ‘pure procedural justice’.

The three types are presented in order of priority: perfect procedural justice is preferred above imperfect, and both rank above purely procedural justice. The choice depends entirely on our ability to find ways to follow this preference.

As we do not a priori accept any norm other than the democratic principle, the norms in a democracy will have to be either directly deduced from the above four principles of justice, or decided through purely procedural justice.

4a.11) Justice Versus Efficiency.

Because of its importance we will explore the concept of pure procedural justice in more depth, using the above example of a lottery to distribute the cake at the tennis club. Socialists like the social-democratic intelligentsia in the Netherlands do not see eye to eye with Rawls and myself in this matter. They maintain that the outcome of the above lottery is unjust, and that we have let efficiency prevail over justice. They agree that we may be justified in resorting to a lottery for reasons of efficiency because following the dictates of justice (carving up the cake in 86 parts) seems to make little sense. But they still consider the outcome unjust because they accord to an a priori concept of objective equality (that all must share equally in the benefits of society) at least the same level of priority as they give our democratic principle.

This leftist view of equality is incompatible with the view that democratic justice is conventional and is an instrument for coexistence and cooperation. If the above tennis club is an association for the mutual benefit of free individuals, then a decision which all of them reject as not being to their advantage, namely carving up the cake into 86 parts, can never be just. In a community of individuals respecting the authority of every individual over himself, nobody can claim the right to say that it is unjust to prefer the one-in-eighty-six chance of getting a whole cake over the certitude of a teaspoonful of crumbs. If the lottery has been accepted in a democratic procedure, then the basis for declaring the lottery unjust can only be a principle which is put above the democratic principle, and thus ipso facto puts the authority of its proponents above that of the other members of the club. (If the dissenter insists, we can clinch the matter and achieve unanimity by compensating him with a teaspoonful of the cake, which is all he would have gotten if his solution had been accepted).

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That illustrates why the first three principles (p. 150) of justice have the nature of procedural rules, and also why they neither need, nor can, accommodate any further clause: they hold for every conceivable practical case. They are the only absolute principles of justice in a democracy.

It explains why even the most generally accepted rule that can be derived from them - the fourth principle (which requires equality of distribution of advantages and disadvantages accruing to society as a whole) is - as said - subordinated to the first three principles and can be invalidated by an objective ground. The fact that we cannot effectively cut a cake into 86 parts is such an objective ground. An egalitarian income distribution cannot be a standard of justice if there is another distribution leaving many better off and no one worse. If the latter distribution can be achieved, it will not only be more efficient, but also more just.

Granted that we thus open society to material inequality. But as shown by our example as well as by the above-mentioned position of the labour party in the Netherlands, the actual decisions taken in a democracy on the basis of our principles of justice will be very similar to those taken on the basis of ‘acceptable for reasons of efficiency’. The main difference lies in the qualification we give to it, and that difference is crucial.

A common error is to consider the labour party's view of justice more strict than mine. It is not. In a society ruled by the democratic principle THERE CAN BE NO EXCUSE, such as efficiency, FOR VIOLATING THE PRINCIPLES OF JUSTICE derived from it. Nor will we ever need such an excuse. Decisions that do not allow justification by a democratic procedure must be either wasteful or undemocratic and therefore anyhow not worth taking. (see ‘Decisions in a Democracy’, p. 19). In a democracy as proposed in this book, Okun's conflict between justice and efficiency will rarely - if ever - arise.

The cooperation on which the wealth of a society is built requires institutions which must be experienced as just. If society can take, in the name of efficiency, decisions which are acknowledged to be unjust, if individuals see their claim to an advantage to which they are entitled on the basis of justice voided in the name of efficiency, how can we protect justice from becoming totally prostituted? How do we decide at which point efficiency is to prevail over justice? Such a decision must - from the point of view of justice - seem to be totally arbitrary in its most pejorative connotation. Those citizens whose claim to an equal share is not honoured for reasons of efficiency will consider that illegitimate, which will undermine effective cooperation and the functioning of society. In the long run, a decision which is seen as unjust will never further efficiency, even if that was its original purpose. There is no reason save pure power for any individual who claims ultimate authority over himself to abide by any decision that is unjust, however much it promotes efficiency. He feels perfectly justified in thwarting the application of the decision by any means at his disposition, legal or not. The state that forces such a decision on him is rightly considered illegitimate.

As will be shown in the Part Four B about income distribution, the decisions taken on the basis of pure contract theory will in practice differ very little from the decisions taken on the basis of

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a principle of objective equality mitigated by considerations of efficiency. Pure contract theory will call the decision just, while the labour party would call it unjust but acceptable on grounds of efficiency. However academic that difference may seem at first glance, it is of crucial and practical importance and it illustrates the difference with utilitarianism.

4a.12 Getting the Contract Signed.

Purer contract theory of justice differs from its predecessors in that it takes the notion of a contract literally and in its common connotation. It therefore requires that all citizens of our state actually subscribe - or at least consent - to the basic contract, and that they do so of their own free will. A society based on consensus does away with the problem of compliance that bedevilled Rawls, but raises another one: how can we ever achieve consensus amongst a group as disparate and aggressive as human beings?

The solution is to turn the sequence around: we do not try to achieve consensus amongst just any given group of people. We create a consensus by admitting into our society only people who accept, however tacitly or grudgingly, the contract we propose.

At first glance that sounds like a bad joke. It becomes a real solution if we can justify the exclusion (from full membership of our society) of all people who explicitly reject our contract, who do not want a democratic society as defined in this book. The argument for disqualification has already been presented in Part One. Because of its importance, we will repeat it below in a slightly different form. The basis for all our justifications is that the basic contract contains only two clauses, from which all other provisions must have been deduced. The adherence to these two basic clauses must be mandatory and unquestioned. They are:

-	The acceptance of those norms, of that minimum of restraint on our behaviour, which is absolutely necessary to form a viable society.
-	The respect in all decision-making of the subjective equality of all members as a prerequisite for ensuring that no member has any a priori authority over another.

If we do subscribe to the amply documented assertion that norms and normative justice cannot be grounded in facts, then any norm having regulative effectiveness is either grounded in power or in convention. A convention binds only those who adhere to it, and the reach of a norm grounded in power extends only as far as adherence to it can be enforced. A contract is nothing more than a formalised convention, including the penalties of infringement.

Imposition of norms which cannot be established by a freely accepted convention can be achieved only by the use of power. If people claim the right to do so, they ipso facto reject the notion of a society uniquely regulated by contract, they opt for a society where norms can be established on basis of power alone. A democratic society must respect the choice of power as a basis for norms. But by their own choice, persons making that choice have then legitimised the use of pure power by society, and have forfeited any appeal to democratic justice if society imposes on them rules and judgements which they consider unjust.

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Obviously, a democratic society must have the power to do so. To survive, it must generate and preserve the power to defend itself against those who do not subscribe to the democratic principle, and the above argument provides the justification for doing so. People like terrorists who reject a democratic society as defined by our principle have ipso facto forfeited any claim to the protection which this principle provides for those members of society who do subscribe to it. If terrorists use violence to protest against democratic decisions, society is justified in using violence against them.

All provisions in our constitution and all laws which we might add to the two clauses of the basic contract can and should be discussed. The fact that a rule was established or a judgement passed in accordance with the democratic principle does not imply that such a rule or judgement will be to the liking of all members. On the contrary, we must expect that as soon as we move from the most general to more specific rules, and from rules to judgements, there will always be members who dissent. In a democratic society, rules and judgements must be revoked if it can be shown that they violate the democratic principle, they are always open to revision through procedures which respect the democratic principle.

What are the options of the dissenter? First, he can try to change the rule or judgement by convincing other members of society of his point of view and get the decision reversed through a democratic procedure. That road always remains open in a democracy. It is a rocky one and there is no guarantee that it will lead to success, however good the cause may look in the eyes of its proponents. One claim is certainly not made in this book, namely that democracy is easy or perfect. The second option is to accept a law or judgement which is not to our liking as the price we have to pay to live in a democratic society. That will be the option most people are likely to choose. (Part One will supply you with arguments in discussions with people who value certain freedoms or ideologies above the democratic principle.)

To accept a democratic decision or to attempt to get it reversed through a democratic procedure are the only options within the framework of a democratic society. That does not follow from any law of nature. The reason why there are no other options is that the democratic rules, laws and procedures of pure contract theory have been designed expressly to foreclose (the need for) any other option because it positively identifies only what is unjust, and considers on par the qualifications ‘just’ and ‘not-unjust’. Either qualification will brand a decision as ‘meeting the criteria of justice in a democracy’.

A democratic society as defined in this book guarantees the maximum freedom which is compatible with living in a society where justice has replaced power as a means of organisation. The problem of contract theory then is the problem of designing a contract such that refusal to sign it must logically be imputed to a rejection of the principle of democracy or to a manifest unwillingness of the individual concerned to pay the minimum price - in terms of loss of freedom - required to live in any ordered society. At the same time, the contract must enable us to take at least all those decisions that are vital to society, and a sufficient number of decisions that are not, but which make society worthwhile to its members so that they will support the basic contract and the decisions following from it even if some decisions do not meet their approval.

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Contrary to Rousseau and Rawls, pure contact theory does not see the social contract as a one-time commitment to certain rights and duties. Only the basic objective and the minimum rules necessary to reach decisions to which no-one can legitimately object are fixed once and for all. These rules are and must be derived directly from the decision to coexist and cooperate as free, autonomous individuals, to form a democratic society as defined by our democratic principle. That decision must constantly be reaffirmed. All decisions taken on the basis of these rules can be reversed by applying these same rules.

Normative justice then is the standard which insures that the members of society will not only once, but continuously subscribe to the basic contract offered by society, even though they might not find all of the resulting decisions to their liking. Compliance and the justification for enforcing it will be achieved if all have the opportunity to take action aimed at the revision of those elements to which they object, provided they respect the right of others to do likewise. People will sign the contract if they realise that - in a world not specifically created for their private gratification - it is the best deal they can expect to get. The fundamental task of the political process is, or should be, to constantly confirm or update the contract so that all can in the end subscribe to it as the best likely to be achievable, under negotiating rules which are as fair as we can make them because they are based on the democratic principle. The problem of democracy is that the actual political process does not meet that requirement.

Obviously it is not necessary that a citizen actually signs a written contract. We assume that by accepting the citizenship of a democratic society he has accepted the basic contract on which it is based, until the citizen - by his objections - notifies society that he disagrees with it.

4a.13) From Theory to Practice.

To have any effect on decision-making, the concepts and principles presented in this book must be translated into (proposals for) institutions, procedures, laws and decisions. That translation will require the input of various disciplines such as sociology, political science, law and economics. Obviously, that is far beyond the scope of this book and of the capabilities of a single individual. This chapter only aims to get that translation under way.

SUMMARY OF CONCLUSIONS which were deduced from our objective of forming a viable society which respects the autonomy of its members.

-	The objective of forming a democratic society - and all principles we can deduce from it - must have absolute priority in social decision-making.
-	As anyone has the right to his own opinion, normative justice is not primarily concerned with the content of the decision, but with the legitimacy of imposing a decision on those who might disagree with it.
-	From our principles of justice we usually cannot deduce what is just, and we do not need to. However, we can tell what is unjust, namely all decisions whose enforcement would conflict with our objective.

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-	We are justified in discarding as illegitimate all objections (to a decision) which are in conflict with our objective. Jealousy is such an illegitimate motivation. Nobody can have a legitimate objection to a decision which leaves everybody at least as well off as he would have been without it and which therefore is not-unjust. A decision which in the first instance would jeopardise the interests of certain individuals achieves this status as soon as we have compensated them for their loss. For all practical purposes, such a non-unjust decision has achieved unanimity.
-	The enforcement of a non-unjust decision cannot be unjust, irrespective of the opinions about the justice of the decision itself.
-	While the above considerations might not tell us what a just decision would be, they provide the foundations for designing decision procedures which lead to decisions to whose enforcement nobody can have a legitimate objection, and which therefore must be accepted as not-unjust. We have argued that this is possible at least for all decisions vital to the society and also for most decisions involving material values. Creating a just society then means designing and implementing such procedures.
-	A freely agreed upon contract provides the best and only opportunity to create a viable society with an absolute minimum of loss of freedom.
-	The practical problem of contract justice then is to design a contract which must be acceptable to anyone who subscribes to our two basic objectives. The probability of a contract which is to everybody's liking is negligible. The next best and achievable option is to design a contract to whose enforcement nobody can have a legitimate objection.

The best known procedures consistent with our democratic principles are:

-	voting, by absolute or qualified majority
-	delegating authority: electing a government or parliament
-	appointing an impartial referee
-	deferring to an objective criterion like chance (a lottery).

Which procedure to use in a given case is itself a decision which must be taken in a democratic way. If more than one procedure satisfies the subjective equality, we should choose the one which seems best suited to promote the viability of society, usually meaning that it promises to generate the highest social surplus. A lottery does not seem the best way to decide about taxation or defence.

Appointing a referee will be a solution only if we can find one which is accepted by all contesting parties as being impartial and competent. If the case is very simple or if the interests involved are very specific, the supply of potential referees will be quite large; rejecting all of them can be taken as a proof of not wanting to reach a just agreement. On subjects regulated by law, society provides a referee service in the form of courts of law. Because possession of such a service is vital to society, it is legitimate for society to appoint such referees (judges) by one of the democratic procedures. In many other cases, especially those which concern a large part of the population, appointing a referee is not a practical solution, for we can hardly expect to find one who will be accepted by all concerned as being capable and unprejudiced.

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THE FIRST STEP: A CONSTITUTION. Clearly, we cannot run the day to day business of a modern society by consulting all citizens for all decisions. It is vital for society that we delegate the authority to take decisions which are binding for all members of society. Appointing public officials invested with that authority will require a decision procedure for taking non-unanimous decisions. By far the most common procedure is a majority vote. To preserve our authority, such delegation will be temporary and conditional on continuing approval (for instance by parliament), and will be limited to certain types of decisions.

Whenever we can justify the use of a majority vote, we have solved our decision-making problem for taking non-unanimous decisions vital to society, as we can always put the acceptance of any other procedure to such a vote. A majority vote is democratic only if it respects the subjective equality, if nobody has a legitimate argument for objection, for instance that the choice for majority rule implies favouring the interests of certain groups above his own. That generates a problem.

Translating our theory into practice by designing a contract and getting it accepted, raises a question with which we did not have to deal in our theoretical considerations. As explained, the contract should leave everybody at least as well off as he would have been without it. People will be tempted to put forward an objection to any kind of contract or decision we propose, even if it does not really harm them, just to establish a negotiating position for claiming compensation. It is almost always impossible to prove whether reluctance to subscribe to the contract is due to rejection of our common objective and thus undemocratic, or if it is a strategy for achieving an optimal negotiating position.

That is why, to prevent anybody from having a legitimate objection, we must decide on general decision-making procedures, and lay them down in laws and institutions, in a process which is - as far as possible - independent of, and therefore prior to, the process of using these procedures for establishing more specific legislation and for taking decisions about subjects involving individual interests and opinions.

These procedures will have priority over the decisions at a lower level of generality. The most general procedures and institutions are those which deal exclusively with the subject of decision-making, irrespective of any specific circumstance; examples are the procedures for appointing a legislative apparatus and deciding on its competence. Together, they form the constitution which all democracies know. To fulfil its function in the democracy defined in this book, the constitution should contain only the principles which can be directly deduced from the choice for that democracy and these basic decision-making procedures. Many constitutions are marred by the addition of other principles or more specific procedures and decisions, which undermines the legitimacy of the decisions taken in its name.

That same quest for legitimacy requires that the constitution contains all rules which are needed to prevent undemocratic applications of decision-making procedures. Specifically, if we have decided that a decision is vital to society and that majority rule is justified, that does not absolve us from the duty to ensure as far as possible that its application does not give rise to injustice. If that decision produces a social surplus, it must mandate the compensation of losses incurred as a consequence of that decision. If - like defence - it entails a net cost, this cost must

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be spread equitably. The constitution can and should include the procedures for identifying and prohibiting decisions which are incompatible with democracy. We know many such provisions, for example laws against discrimination by institutions of society on the basis of subjective attributes of members such as sex, race and religion which are not directly related to the facts involved in meeting the explicit and accepted objective of the decision.

Having priority over the normal decision-making process which it regulates, the constitution should be hard to change to safeguard against changes by a majority created on basis of ad hoc interests. To protect the rights of the minority, most democracies thus rightly require a qualified majority. Note that the size of the qualification cannot be deduced from any principle. It is a compromise between two conflicting requirements of our democratic principle:

-	the necessity to protect the rights of the minority; that pleads in favour of a very high majority
-	the necessity to keep any decision by society open to revision if that is the will of its members; that argues against a high qualifying majority.

Deciding on the best compromise will be a matter of trial and error. Fortunately we have the experience of many countries to provide us with a starting point that has proved viable: around two-thirds. We can improve on it in small steps if we feel so inclined.

Nearly all constitutions and programmes of political parties mention the necessity of protecting the rights of the minority and preventing the dictatorship of the majority. But they do so in vague and very general terms. Pure contract theory defines in a concrete and operational way what it means to protect the rights of the minority, namely a specific type of unanimity: the absence of a legitimate objection. As previously explained, that is achieved by the respect of subjective equality, and by accepting as democratic only:

-	decisions which are vital to society and evenly distribute an eventual sacrifice
-	decisions which are not but which create a clear social surplus, provided we compensate individuals for eventual losses.

Enforcing any other decision must be branded as unjust, whatever its moral values. That neutrality - and its consequent limitation of the decisions which we can legitimise - is one of the reasons why pure contract theory is unpopular in certain circles.

Negotiation is the backbone of democracy. Surprisingly, most philosophers of normative justice simply ignore that most decisions involve two or more usually conflicting aspects of justice. Striving for a just income distribution pitches entitlements of individuals against principles of equality, and both of these may conflict with the justifiable requirement that society should choose that social arrangement which generates the highest benefit for all its members (any loser would have a justifiable objection if another arrangement is decided upon). As we cannot, in practice, isolate the various aspects of the economy, we cannot devise separate solutions for each of these aspects. Yet that is how we usually try to deal with them. Any such partial ‘optimisation’ will result in demonstrable injustices. We find that most subjects of social decision-making which are relevant - because contested - are contested precisely because they involve more than one aspect of justice. Abortion opposes the right of the individual to decide whether he wants a child or not against a presumed obligation of society towards what will in the future be a member.

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In case of such multi-faceted problems, no theory of justice can tell us what the ‘right’ judgement is. But contract theory can define at least the limits within which the judgement must fall, on the grounds that outside of these limits it would clearly violate the democratic principles. It can define what is unjust. That leaves a grey area within which no positive determination is possible of what is just. Contract theory can operate in this grey area in a democratic way because it provides a basis for establishing (negotiating) procedures for taking decisions which do not give rise to legitimate objections and thus do not undermine the legitimacy of the institutions of democracy.

As already noted by Madison, one of the first presidents of the US and founder of the Republican party, such negotiations are at the root of democratic decision-making. That certainly applies in a society based on a contract theory of justice. Negotiations are a form of power play. In anarchy, there are no restrictions on the kind of power which the parties to a negotiation can muster; violence will always be an option to the individual who enjoys physical superiority. Any negotiated agreement will hold only as long as both parties expect to gain more from respecting the agreement than by reneging on it. The choice for a democratic society and its process of regulated negotiations arises from the benefits to be gained that way in comparison to other kinds of society.

Many decisions, for instance those pitching material wealth against non-material elements such as education, arts etc., are usually negotiable. Other decisions, for instance about matters of taste, religion and principle, including the democratic one, are not. As the democratic principle must be given priority over all others, non-negotiable issues will be a legitimate subject of social decision-making only to the extent that they can be deduced from or reconciled with the democratic principle. Issues of principle which are not negotiable know only two alternatives: for or against. There is no grey area creating room for negotiations. If incompatible with the democratic principle, they cannot be part of social decision-making. Of course anybody remains free to hark to these principles for his own private decision-making.

RULES FOR NEGOTIATIONS. In democracy, negotiations are successful if they lead to an outcome which is acceptable to all and which therefore is just in the sense of not-unjust. To merit the qualification of democratic, the outcome of the negotiations must represent the free will of all those who were a party to them. No member or group must have the power to impose his solution on the others; and society must ensure, as far as possible, that its procedures and institutions do not favour the negotiating position of the parties. Two issues are of special relevance in that matter.

To express the free will and consent of all parties, the outcome of applying the agreement must reasonably well match the expectations of the parties. Sometimes it does not. As long as the disparity between expectations and results follows from errors of judgement of the dissatisfied individuals themselves, there is no cause for branding them unjust... provided such errors were not induced by other members of society. Deception is an attempt to foil the exercise of our autonomy and undermines the legitimacy of the decisions reached in the negotiations. Society must establish negotiating procedures which prevent or punish certain practices such as falsification of documents and other forms of deceit beyond what is acknowledged as normal

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negotiating tactics. And the rules and institutions of society must as far as possible ensure that all have equal access to any information held by society. The Part Four B about a just income distribution will illustrate these problems.

It is a measure of the ignorance of the basic principles of contract theory that such rules exist for negotiations between private individuals but not for the negotiations which are the backbone of our political process: politicians are allowed to do things for which any private businessman would be condemned to a fine or even to jail, or at the least would lose his reputation as a reliable business or negotiating partner.

Politicians are not a special breed born into deception and incompetence. In my previous book (‘Democratie als Uitdaging’), I have already drawn attention to the problem, and explained that the fault lies in current misconceptions about the political process in western democracies. Contrary to popular mythology, politicians do not represent the ‘general will’ of the people; they are not employed by the ‘people’. They owe their job as politician, and thus direct their loyalty, to organisations or groups which can keep them in power: political parties (in case of proportional representation) and special or local interest groups (in a district system). Quite possibly, no better political system can be found, but that is no excuse for failing to publicly acknowledge the paradoxes of our present system and attempt to deal with them.

As social decision-making in a democracy requires getting the consent of people for a proposed decision, it is a battle for their minds. The common and prevalent weapon in this battle is argumentation. From the point of view of the individual, an argument is successful if it has persuaded the person to which the argumentation is addressed to rally to his point of view. From the point of view of society an argumentation is legitimate if the individual to which it has been addressed is allowed to decide about its validity on the basis of his own objectives. He should not, having voted for a certain proposal, later find out that the real portent of that proposal is different from the one he was led to expect. Clearly we must admit that any party to the argumentation will emphasise those aspects of reality which favour his proposal. But it is forebidden that he misrepresents those aspects: he must not be deliberately misleading. He must be willing to play the game of democracy which allows each of us to hold to his own opinion and to further his own interests as long as these do not intrude on those of others. Falsifying the representations of facts robs those people who are unable to verify them of that right.

In conclusion, even if we can agree on the principles of justice and on their portent in a given case, we will still have to settle matters of fact such as whether a decision is vital to society, what exactly does a certain person lose by a given decision etc.. In a civilised society such questions are settled (or not) by argumentation. The last link in the chain towards democracy thus is to define the rules of the game of argumentation so that it can fulfil its function as tool for arriving at decisions (about facts) which we can qualify as democratic, to merit the name of ‘democratic argumentation’.

Before we broach that subject, it will be shown how the principle of pure contract theory can be applied in practice. Besides serving as an illustration, it also has another function. In the end, any norm for justice is subjective, also the democratic principle. People will accept this principle as

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the basis for our institutions of justice only if the resulting society will tum out to be attractive: the proof of the pudding is in the eating. This is a folksy way of expressing Rawls' notion of reflective equilibrium (see Volume Two, Rawls, p. 349): to confront the norms of justice with the actual judgements which are made on their basis, then critically appraise them on the basis of these judgements and change them if this appraisal gives us cause to do so.

The example chosen is the problem of a just income distribution which was at the forefront of the political discussions in my country at the time this book was conceived but has since made way for other topics. Using a ‘mature’ subject provides distance for perspective and overview. It also is the one subject on which I am sufficiently knowledgeable and experienced (as an author and as a member of the commission for income policy of the SER, the Dutch Social and Economic Council) to present my views on that subject with some confidence. In fact, it is my involvement with problems of income distribution which initially forced me to delve into the philosophy of justice. Given the ‘holistic’ nature of social systems, the problem has ramifications in many disciplines and cannot be done justice within the scope of this book. It is just a fictive illustration of the application of the principles of justice in argumentation.