LA VÍCTIMA EN EL JUICIO ORAL Y LA ACTUAL NORMATIVA

This section aims at understanding how theories of the second best help inform the question of action guidance. One of the central issues with second best theories is that they have been interpreted in the political philosophy literature as presenting an important challenge to the idea of ideal theory ‘as target’. The original formulation of the theorem comes from Lipsey and Lancaster (1956):

The general theorem of the second best states that if one of the Paretian optimum conditions cannot be fulfilled a second best optimum situation is achieved only by departing from all other optimum conditions (Lipsey and Lancaster 1956: 12)

An allocation of economics goods is said to be Pareto efficient if and only if there are no transactions to be made that would increase at least one person’s individual utility without also decreasing the utility of another (Wiens 2016: 134).

The three first questions to be addressed here are: how to interpret the theorem; whether the ‘optimum conditions’ of the theorem are analogous to the kind of state of affairs described by ideal theory; and finally what kind of challenge this poses to ideal level theorising. I leave the second question aside for a moment. I assume here that normative political analysis benefits from the analogy between ideal theorising and the sort of maximization exercise presupposed by the theorem of second-best. I will return to this second question by asking whether the decision procedure set by the second best theorem informs the decisions that are made in non-ideal theory. I will begin by answering the first and third questions.

Regarding the interpretation of the theorem in political philosophy, what is normally understood is that: if one of the background assumptions about social conditions of ideal theory does not obtain in the real world, then the best action under the circumstances might not necessarily be one that would follow the precepts of the ideal principles that would characterise a just society (Goodin 1995b).

For Wiens, this is not entirely right. The theorem applies not when the assumptions fails to obtain but rather when one of the principles that characterises an ideal society fails to be satisfied. That is, if one of the principles that characterise the just society did not obtain, then the best available option under the circumstances would not necessarily satisfy the remaining principles (Wiens 2016: 133). What the theorem is meant to show is that if one optimum condition is not satisfied, then the ‘second best optimum’ will not necessarily fulfil the ideal setting as much, or as far, as possible. My goal here is less to advocate for one interpretation than to examine what reasonable implications to the ideal and non-ideal theory debate we can draw from them.

The third question I formulated above is whether the theorem challenges ideal theory ‘as target’, the view according to which ideal theory requires us to satisfy the principles of justice that characterise the ideal society as much as possible. For Robert Goodin, according to the first interpretation of the second best theorem, the theorem applies when we cannot realise some of our basic moral and social values (e.g. liberty, security, equality). When one of these cannot be realised, the theory of second best “warns us against assuming naively that it is better to implement more of our [values] rather than fewer (or indeed to implement each of them to a greater rather than lesser degree)’’ (Goodin 1995b: 54). If we cannot realise all these values simultaneously, we should not seek to realise as many values as we can.

For Wiens, this should not trouble ideal theory ‘as target’. What Wiens in fact argues is that a proponent of ideal theory as target should reply that ideal theory is precisely motivated by the awareness that all values cannot be realised simultaneously (Wiens 2016: 136). And ideal theory normally puts forward ways to determine the relative weight we should attribute to different values. Ideal theories tell us how to balance values (Gilabert 2012a, Gilabert 2012b). Rawls’ reasoning for the lexical ordering of his principles is a good example. This way of applying the theorem does not provide a convincing critique of the claim that ideal theory can act as a target.

If we transpose the theorem to the institutional design level, the argument says that if we cannot fully realise an ideal institutional scheme, it is not clear that we should aim to get as close as possible to the ideal. Yet, we can also transpose a similar response than the one given above, to the institutional level. That is, in non-ideal theory we should not try to implement the ideal institutional setting, but the non-ideal institutional setting that best realises the ideal principles. Valentini argues that it is not inconsistent to aim at using ideal principles even if we are not aiming for an ideal setting, “because normative principles do not have any particular institutional implications” (Valentini 2011b) and thus could be satisfied in non-ideal theory by different schemes.

functional connection between ideal theory ‘as target’ and ideal theory ‘as measure’.77

The measure function is a way to take us closer to the ideal target, even if we do not try to realise the ideal target directly. However, as seen in the last two chapters, I indicated that using ideal theory ‘as measure’ is not as straightforward as it seems. I return to this here. I wish to show that ideal theory ‘as measure’ is not what allows us to connect action in non-ideal circumstances with ideal theory ‘as target’. We need a better theory of ‘transition’.

Recall now the discussion of idealised assumptions in chapters 1 and 2, which I will connect with the interpretations of the theorem by Goodin and Wiens mentioned above. We have seen that making idealized assumptions does not undermine ideal theorising per se. There are good idealised assumptions that can be dealt with in non- ideal theories as long as the ideal theory does not mischaracterise the object the principles they are associated with are intended to regulate. However, although good idealisations do not undermine ideal theorising, they do not say much about the action guiding capacity of ideal principles. The second-best theorem warns us against idealisations that do not obtain, in the first interpretation. But more importantly, we know that regardless of which interpretation of the theorem is correct, we should be distrustful of idealisations that cannot be addressed in non-ideal theory.

Moreover, the theorem does not say anything about a duty to create the conditions for some institutional background structures to obtain. Perhaps we have a duty to create the background of interactions that would allow for the implementation of ideal principles (Ronzoni 2009). This is compatible with Wiens being right and the theorem applying only to outputs. It is also compatible with Wiens being wrong and one assessing what assumptions can potentially be addressed in non-ideal theory. That is, the question about assumptions is truly a question about whether idealisations can be addressed in non-ideal theory and whether addressing them will leave us in a better position to implement ideal principles. Whether or not we have a duty to implement

77 _{Recall these two functions of ideal theory, which are respectively: to provide the target we should aim at} when doing non-ideal theory and to provide the measure according to which we can know to what extent a given situation deviates from the ideal.

background conditions for more just institutional settings is not entirely given by the second best theorem. If anything, the theorem really only applies to top-down ideal theorising.

Let me pursue this reasoning by formalising this discussion. The argument from second best theory against ideal theory ‘as target’, in the first formulation, is as follows (Wiens 2016):

(P1) We should not necessarily aim to satisfy all principles of justice of ideal theory if a background condition assumed in the formulation of the principles does not obtain.

(P2) A given background condition does not obtain in a given case.

(C) We should not necessarily aim to satisfy all principles of justice of ideal theory in this case.

Wiens’ interpretation around the idea of outputs gives us the following argument instead:

(P1*) We should not necessarily aim to satisfy all principles of justice of ideal theory if a principle of justice of the ideal set of the principles does not obtain. (P2*) A given background condition does not obtain in a given case.

(C*) We should not necessarily aim to satisfy all principles of justice of ideal theory in this case.

In fact, Wiens endorses the second interpretation because he claims that, since Lipsey and Lancaster’s publication of the first theorem, P1 in the first interpretation has not been proved. However, P1 has recently been discussed. The discussion around the notion of idealisation in chapters 1 and 2 nuances P1 (Valentini 2009 provided the detailed discussion on this point, as mentioned above). Chapters 1 and 2 reached the conclusion that background assumptions cannot be placed in a single category. In some cases, the fact that a background assumption did not obtain, did undermine the value of a theory and the second best theorem would apply. We have seen, such as with the assumption of well-ordered societies in the Law of Peoples, why we should not pursue an

ideal theory in the case that a background assumption did not obtain. But in some other cases, theories could more easily deal with assumptions not obtaining. The failure of ideal circumstances is not what prevents us pursuing ideal theory (Lawford-Smith 2009, Simmons 2010, Mason 2012).

Wiens rightly points out nonetheless that in the second interpretation, there is not much to support the claim that even in the case where one principle does not obtain, we will not be able to support normative principles in the real world. The fact that in a given situation we are shown that ideal principles are not satisfied is not sufficient to trigger the second-best theorem (Wiens 2016: 142). In sum, in response to the three questions of this section, we saw that the there are two plausible interpretations (question 1) of the theorem and that none of them rules out that there are ways elements of ideal theorising could be used in non-ideal theory (question 3). Yet, although it provides an interesting conceptual framework, the theorem of second-best does not cast much light into the decision-making process that connects the ideal and non-ideal theory. This relates to the second question that was left aside, regarding how the second-best theorem informs the ideal and non-ideal theory debate. I argue that there are central questions that provide a better framework for a theory of transition than the second best theorem, in particular questions such as: whether (a) we have duties to create the background conditions for more just institutional settings and whether (b) a theory of institutional design can deal with and ideal values and idealised assumptions not obtaining. We should see in the next sections that these questions will help us better to capture what is implied in the transition between available institutional alternatives and more ideal institutional settings.

In order to understand the question of transition, a final element to be addressed in this section relates to the notions of approximation and resemblance, which attempt to elucidate the connection between best and second best. Theories of second best normally do not include transitional elements that connect non-ideal theory to ideal theory. For Simmons,

A state of affairs can be “second-best” because, say, it is the arrangement that most closely resembles “the best” in the set of those arrangements that are politically feasible (i.e., in cases where the ideal arrangement is simply not feasible), without this second-best

arrangement constituting genuine progress toward actually achieving the ideal (Simmons 2010: 25).

Simmons argues here that although ‘second-best’ arrangements may resemble the ideal setting, they are not thought of as paving a path that leads to the ideal setting. Simmons is right to criticise decisions based on second-best that ‘resembles’ the ideal. ‘Resemblance’ is indeed a vague way to depict the connection between ‘best’ and ‘second best’.

I argue here that ‘resemblance’ is perhaps not the issue as much as using ideal theory to choose between alternatives. The question of what arrangements must be pursued to connect us to ideal theory has yet not been answered in this thesis. The first element I wish to address is that indeed it is not ideal theory that dictates the choice between two non-ideal level alternatives. This is one notion to be addressed in order to answer the central questions of this chapter, namely about what allows us to choose between short-term actions in order to move towards more ideal settings.

Proponents of ideal theory will say that ideal theory still constitutes a good target for non-ideal theory because we should still aim to satisfy ideal principles to the greatest extent as possible. In other words, we should try to realise the state of affairs that best approximates the ideal setting (Gilabert 2012b: 243, Valentini 2012b: 42). The second best theorem precisely rejects this view. It says we have no reason to expect that a state of affairs that approximates an ideal setting will be one from which we will be able to realise the ideal setting.

In order to reject this conclusion, the ideal theorist has to provide concrete evidence that a set of real-world reforms is likely to bring us the ideal setting. The ideal theorist will have to show which among a given set of alternatives will best allow to realise the ideal social setting. This implies that the ideal theorist will be required to do non-ideal theory. And I have already shown that non-ideal theory does not presuppose ideal theory. That is, whatever reforms are necessary will not be obtained by using ideal theory ‘as measure’. It is non-ideal theory that dictates whether to move towards a second-best or a third-best scheme.

order to “(1) estimate the state of affairs most likely to emerge from efforts to realise the ideal as closely as possible; and (2) compare this state with feasible alternatives from the standpoint of justice” (Wiens 2016: 143). This shows that the comparative analysis of ideal settings will also be given by non-ideal theory. The action guiding elements of a political theory will be informed by non-ideal theorising. The knowledge in this case of the best state of affairs will be determined at the level of non-ideal theory. The kind of work that allows determining what state of affairs is likely to emerge in our effort to move towards more desirable social settings is a work proper to non-ideal theorising.