Bleached Foundations 111the rationality of both thought and his action, is ‘the rule of justice’, which implies
treating like beings and situations alike (see Perelman 1963: 132).
In sum, the core of justice is equivalent to theformalfactor in all rational activity.
This formal factor also has close relation to equality. The rule of justice, ‘treat like
cases alike’ is the same as ‘equality of treatment’ or ‘equal consideration of interest’.
However, both formal justice and equality are distinct fromsubstantivespecies of
equality and justice. This formal substantive distinction is also directly echoed in
H. L. A. Hart’sConceptofLaw, where he notes that ‘justice is traditionally thought
of as maintaining or restoring a balance or proportion, and its leading precept is
often formulated as “Treat like cases alike”; though we need to add to the latter “and
treat different cases differently”’ (Hart 1961: 155–9). It is also implicit in Rawls’ early
distinction between the ‘conception of justice’ as opposed to ‘concepts’ or principles of
justice. As Rawls notes: ‘Men disagree about which principles of justice should define
the basic terms of their association, yet we may still say, despite this disagreement,
that they each have a conception of justice’ (Rawls 1971: 5). For Rawls, every person
‘may be supposed’ to have this conception of justice and ‘societies will differ from
one another not in having or in failing to have this notion but in the range of cases to
which they apply it and in the emphasis which they give to it’ (Rawls 1997: 198).
The distinction between a concept and conceptions also harks back to the modified
essential contestability thesis, mentioned earlier. Rawls (and most other like-minded
theorists) is suggesting that, despite wide-ranging disagreement about justice, a key
aspect of the concept can still be identified and developed, which corresponds with our
deep intuitions. This point builds upon the connection between ‘reason’ and ‘justice’.
In effect, it purports to resolve the issue of justice—although it moves indiscernibly
between the formal and substantive accounts. Reason is concerned with abstract
conclusions drawn from premises that everyone accepts. The same point can be
observed, for example, in Brian Barry’s work. For Barry, principles of justice capture
a notion of equality, which is equivalent to ‘reason as universalizability’. Thus, he
comments that ‘The criterion of reasonable acceptability of principles gives some
substance to the idea of fundamental equality while at the same time flowing from
it. This is, if you like, a circle—but not a vicious one’. They are both ‘expressions of
the same moral idea’ (Barry 1995: 8). Reason, justice, and a notion of equality are
equivalent to impartiality and universalizability.^4
Conceptions of Justice
However, this more general sense of justice and reason is characteristically subdivided,
in twentieth-century discussion, between various species of justice. Rawls’ work is
one important detail in a much larger canvas. Aristotle originally distinguished dis-
tributive from commutative and corrective justice.^5 However, Aristotle’s (and Plato’s)
view of the connection between just states of affairs and a balanced human char-
acter, is of little interest to the bulk of twentieth-century justice discussion, with
the exception of certain contemporary neo-Aristotelians (who will be examined in