Bleached Foundations 113or quality. In the last few decades, the bulk of attention has fallen to non-desert
orientated principles, with some recent exceptions in the literature (see Sadurski
1985; Sher 1987). In the main, desert has been bypassed by the bulk of justice theor-
ists. Non-desert principles cover the larger bulk of contemporary justice theorizing.
The formal claim of non-desert theories—usually premised upon an initial rejection
of desert argument—is that distribution is justified via a wide-ranging agreement
or consensus on a rational procedure, empirical assumption or moral principle, or
a pluralistic combination of these, which forms the basis for distributing burdens
and benefits. Non-desert principles vary widely. One convenient way of typologizing
them is to distinguish betweentwoforms of non-desert orientated distributive prin-
ciples, namely, the rationalist (basically contractarian claims) and the more empiricist
claims (such as need). The latter is concerned to establish an uncontested empirical
ground for distribution—characteristic of minimums in welfare states.^12 The former
is concerned with the ideal rational conditions in which individuals come to a con-
tractual decision about the manner of distribution in society, in specified rational
circumstances. This latter theme particularly has dominated justice-based literature
over the last three decades.
The contractarian claims have been usually subdivided again between, what Brian
Barry has usefully typologized as ‘justice as mutual advantage’ and ‘justice as imparti-
ality’ arguments (see Barry 1989). In the former theory, justice is seen as the outcome
of a mutual bargaining process among individuals in an initial position (Buchanan
1975 and Gauthier 1986). Essentially, this theory is a sophisticated form of rational
choice argument. In the latter, justice is seen to be the outcome of a rational agree-
ment between discrete individuals in a hypothetical situation or original position
where constraints are placed upon the context and character of reasoning that can
be used (Rawls 1971, Barry 1995b, and Scanlon 1998). The contract device, in Rawls
particularly, aims to represent a choice situation and show why individuals have good
reasons to adopt justice as fairness. It is not (especially in his more recent work) seen as
a bargaining positionper se, as in Gauthier. One other dimension that appears in the
literature is an attempt to establish a plural concept of justice, which is premised on
the diverse principles that can be deployed in different contingent contexts (Michael
Walzer 1983 and David Miller 1999).
Procedural Theories
Procedural theories of justice argue that justice is concerned with rule-following
or rule-consistency. The most characteristic form of this is the idea of justice as
upholding the ‘rule of law’—although there are again considerable variations on this
theme. Within the proceduralist positions there is strong anti-constructivism. Both
Hayek and Nozick reject desert as both interventionist and potentially entailing the
diminishment of liberty. For Hayek, justice is concerned with the formal consist-
ency between a set of social rules. He thus drew a distinction between teleocratic
and catallactic orders. The teleocratic order is directed at a specific purpose, whereas