An alternative justice-centered approach

The notion of a socially determined individual normally points away from rights-based thinking and toward some idea of community, a communitarian ethic of the good life, and communal identity:

On the rights-based ethic, it is precisely because we are essentially separate, inde­pendent selves that we need a neutral framework of rights that refuses to choose among competing purposes and ends.

Communitarian critics of rights-based liberalism say we cannot conceive ourselves as independent in this way, as bearers of selves wholly detached from our aims and attachments. They say that certain of our roles are partly constitutive of the persons we are - as citizens of a country or members of a movement or partisans of a cause. But if we are partly defined by the communities we inhabit, then we must also be implicated in the purposes and ends characteristic of those communities. (Sandel, 1988:115)

In this view, a full account of the social determination of persons takes us away from a justice-centered approach.

A defining characteristic of justice-centered approaches is their refusal to identify a common good or to subordinate citizens' private conceptions of the good life to the collective. As Charles Taylor puts it:

The ethic central to a liberal society is an ethic of the right, rather than the good. That is, its basic principles concern how society should respond to and arbitrate the competing demands of individuals. (1989:164)

Dissatisfaction with such a restrictive notion of the ends of public life inspires a communitarian critique of the justice-centered approaches (Sandel, 1982). Clearly, the ethic of rights, especially in the hands of the theorists so far considered, stands against the effort to find anything more in the mission of public life than the administration of justice, particularly adjudication of conflict in the private sphere.

The communitarian strategy is not, however, the only one available to those dissatisfied with the conception of the public-private relationship typical of justice-centered theories. In this section, we consider an alternative that seeks to incorporate the idea of social determination into a conception cen­tering on notions of right and justice. This alternative has its inspiration in Hegelian social theory.^[32] In the Philosophy of Right (1821), Hegel attempts to make political economy one element, or moment, of a systematic conception of society. In so doing, he argues for making economy part of an ethical order founded in the rights of persons. The notions of right and contract play a central role. Yet the approach is not contractualist, nor does it judge the ethical standing of social interaction exclusively on grounds of its con­sistency with a formal notion of private property.

Hegel criticizes Rousseau’s contractarian approach for treating the indi­vidual as something antecedent to the ethical order as a whole, arguing instead that it is only as a member that “the individual himself has objectivity, genuine individuality, and an ethical life” ([1821] 1952:156). Comments such as this, especially combined with Hegel’s emphasis on the corporate identity of persons (pp. 133 and 152-4), encourage a corporatist if not communitarian interpretation. Yet, while incorporating the idea that individuals depend on the whole, Hegel’s ethics center on the idea of an order grounded in justice and right. He attempts to make ethical order and individual right two aspects of a single conception.

Hegel makes self-determination his starting point without making the in­dividual autonomous in the libertarian sense or antecedent to the ethical order in the sense of the contractarians. The difference is rooted in Hegel’s claim for the constitution of self-determination within the relations of reci­procity. An appropriated, constituted set of political and economic institu­tions can create and sustain the self-determination of persons.

Consider property and contract within this framework of thinking em­phasizing the social recognition of individual self-determination. For Hegel the significance of property lies in its manner of connecting persons or making explicit their implicit social connectedness. Exchange is, for Hegel, no mere instrument for achieving private ends; it is a mode of social constitution of persons. Thus, Hegel argues against an instrumental understanding of con­tract and makes it, in part, an end in itself. To own property is to express one’s status as a property-owning person. To enter a contract is to establish oneself as a bearer of rights and of the capacity for contracting, and thus as a person. We make contracts not simply to acquire the things we need, but to establish and show that we are persons. Thus, Hegel makes the central concepts of the justice-centered approach - right, property, contract - part of the social construction of persons. They make persons as much as they are made by them.

This means that the system of property relations (including the economy) carries for Hegel a different ethical significance than it does for the other justice-based theories.

Hegel does not develop a systematic answer to this question. The principle he favors is implicit in his judgment of the responsibility of the public au­thority for the poor:

Not only caprice, however, but also contingencies, physical conditions, and factors grounded in external circumstances may reduce men to poverty. The poor still have the needs common to civil society, and yet since society has withdrawn from them the natural means of acquisition and broken the bond of the family... their poverty leaves them more or less deprived of all the advantages of society, of the opportunity of acquiring skill or education of any kind, as well as of the administration of jus­tice... the public authority takes the place of the family where the poor are con­cerned.... ([1821] 1952:148-9)

Hegel advances the important claim that a market economy makes its members dependent on it for their livelihood without in any way assuring that they will be able to acquire that livelihood according to the rules of the market. Society, then, is responsible for the poor because society deprives them of their livelihood. Yet Hegel makes his point in a peculiar way (Winfield, 1988:185-7). According to Hegel (market) society deprives the poor of their “natural means of acquisition” and their recourse to the family. Society is responsible because of its differences from earlier forms of connectedness and mutual dependence.

However moving this argument, it does not sit well within a rights-based approach. The form of social dependence and connectedness it refers to as justification for intervention, that of the family, is not based on the rights of independent persons. Nature and family are not integrated by concern for justice, and the effort to derive rights from their organization runs into serious problems. The question remains, then, how the failure of market economy supports a claim of rights to public welfare within a Hegelian rather than contractualist framework.

Richard Winfield answers this question in the following way:

What supplies the requisite justification of the public administration of welfare is the fundamental connection between right and duty that Hegel emphasizes throughout his analysis of the different spheres of right. Because economic right, like any other right, consists of an exercise of the freedom to which all agents are entitled, it equally entails the universal duty to respect the same exercise of freedom by others.... This respect, which all bearers of right are obligated to pay as well as entitled to receive, consists not just in a theoretical recognition, but in a practical commitment to curtail particular actions of one’s own when necessary to permit others to exercise this right.... Applied to the economic right to satisfy self-chosen needs through actions of one’s own choosing, the connection between right and duty signifies that market agents are duty-bound to restrict their economic activity in conformity to whatever partial regulation is necessary to extend equal opportunity. (1988:187)

Winfield’s version of the justice-centered approach proposes recourse to a principle of equal opportunity in laying a foundation for public economic intervention.

An alternative strategy within a Hegelian justice-centered approach follows Ronald Dworkin’s (1977) emphasis on the principle of equal regard. The principle of equal regard follows from the premise that our personhood comes into existence in its social recognition. Our claim to be regarded (and thus treated) as persons presumes a society of persons whose regard constitutes our personhood. Unless we recognize the personhood of others, they cannot recognize ours: Thus the central place of reciprocal recognition in the He­gelian theory. The ideas of reciprocity and mutuality become the framework for a justice-centered theory once that theory incorporates the social deter­mination of independence. Equal regard expresses this idea in the form of a principle relevant to defining the limits of market economy (the sphere of property and contract). It leads to and subsumes the principle of equal op­portunity. Levine employs this principle as part of an argument for limitations on private ownership of capital:

The demand that people be treated with equal regard limits property rights to capital in much the same way that the right to life limits property rights to objects such as weapons specifically designed to deprive people of their lives....

If we have a right to equal regard, and if the use of capital as private property creates a hierarchy of differential regard, then the use of capital for private ends violates rights. (1988:131-2)

This argument rests on two premises: first, that we can claim a right to equal regard in this strong sense and second, that ownership of capital by private persons as their personal property creates (and is intended to create) hier­archies of wealth and status. If these premises hold, then the justice-centered argument takes on more radical implications than generally allowed in its contractarian forms.

The justice-centered argument can be pushed in this direction only when placed within the framework of the social determination of persons (associated earlier in this discussion with the Hegelian social theory). It assumes that our integrity and capacity for self-determination are part of our social con­dition rather than qualities we have prior to being in society. The dependence of our integrity on our social condition as emphasized by Hegel makes society responsible for the conditions that assure that integrity and autonomy will be sustained, including those associated with the regard we might expect to receive as persons.

Equal regard does not of course mean sameness, equality of talent and achievement, or the like. It means only that we are treated equally as persons. The principle of equal regard excludes any exercise of right that challenges or violates that status. In some ways, the principle of equal regard must animate any justice-centered theory. The theories differ less in whether they appeal (implicitly or explicitly) to the principle than in the concrete meaning it takes on for them. The same can be said, of course, about equal opportunity.

A form of equal opportunity and equal regard exists in the stark landscape of the libertarian theory. Property rights are equally respected and what rights we have, we all have equally. We are all equally regarded as (potentially) property-owning persons, agents of our own destinies, centers of initiative. The demands equal opportunity and equal regard place on us here are, however, minimal. Most of what we need to develop and maintain our in­tegrity as persons we have independently of our intercourse with others. We are not dependent on others unless we choose to be and they (individually and collectively) bear no responsibility to secure the concrete conditions that will facilitate the success of our life projects.

No theory, of course, insists that society (especially the public authority) take responsibility for assuming that each member’s life projects will suc­ceed. To do so would, so far as it is possible at all, necessitate an intrusion into the person’s private life inconsistent with any reasonable notion of individual integrity. Still, those theories that claim a greater dependence of the individual on the social condition also make society bear a greater responsibility for at least assuring, so far as possible, each individual’s capacity to develop and realize a life project of her own. Clearly Rawls goes much further in arguing for such responsibility than do the libertarians. His commitment to equal opportunity and the difference principle justifies a significantly greater degree of intervention into the private sphere than libertarians would sanction.

The justice-centered theories considered in this last section go further in conceptualizing the social determination and thus social dependence of per­sons. In this framework, being a person is a social condition, a status attain­able only within a society of persons capable of constituting personhood through recognizing it. Recognition occurs in a variety of contexts, but those linked to equal opportunity and equal regard have special importance for political economy. Thus the justice-centered theory in this form supports more extensive economic intervention because it claims a deeper sense of social dependence of persons.

The communitarian critique of justice-centered theories emphasizes the thinness of the conception of the social connectedness of persons in those theories. In this chapter, we considered variants of the justice-centered ap­proach with special consideration for their ability to encompass social inter­dependence. We found considerable variation along this dimension. For contractarian and especially Hegelian theories, social determination is not excluded when justice is made the central concept of the theory.