Two Pictures of Justice

Two Pictures of Justice
Rainer Forst
(Victoria Colloquium in Political, Social and Legal Theory,
March 14, 2008; working draft, not for publication)
1.
I should begin by explaining my somewhat strange title, if only to avoid disappointment.
For some of you may have expected a copiously illustrated slideshow in which I would present
the various images that have been made over the centuries of diké or justitia, sometimes with,
sometimes without a blindfold, though invariably with the sword and symbols of evenhandedness and non-partisanship – and, needless to say, as a goddess. 1 At times she is
depicted as beautiful and overpowering, yet at other times also as hard and cruel, as in Klimt’s
famous paintings for Vienna University, which were regrettably destroyed during the war (and
were never hung). That is a fascinating and absorbing topic, but I must leave it at that because I
have something different in mind and others are better qualified for an iconographic study.
The understanding of “picture” on which I want to base my discussion is one I borrow from
Ludwig Wittgenstein. In the Philosophical Investigations, §115, Wittgenstein writes: “A picture
held us captive. And we could not get outside it, for it lay in our language and language seemed
to repeat it to us inexorably.” 2 A picture of this kind shapes our language about a certain topic,
brings together the various usages of a word, and thus constitutes its “grammar,” i.e. how we
understand and use a word. But such pictures can also point our understanding of something in
the wrong direction, much as, in viewing the famous picture puzzle of a duck and a rabbit, one
1
Otto R. Kissel, Die Justitia: Reflexionen über ein Symbol und seine Darstellung in der
bildenden Kunst (München: Beck, 1984); Dennis E. Curtis and Judith Resnik, Images of Justice,
Yale Law Journal 96, 1987, pp. 1727-1772.
2 Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (Oxford: Basil Blackwell,
1978), §300; on this, see Pitkin, Wittgenstein and Justice (Berkeley, CA: University of California
Press, 1972), pp. 91f., 287ff.
1
can see only one aspect at a time, 3 or as our thinking is determined by particular examples that
lead us to false generalizations. 4
Thus, in what follows, I want to discuss two notions of justice whose existence can be
historically reconstructed and understood, but one of which I want to argue inadmissibly limits
and simplifies our understanding of justice and indeed leads it in a wrong direction. And I prefer
to regard these two competing notions of justice as “pictures” because they bring together a
wealth of conceptions and images, and not only of justice, but also in particular of injustice. The
latter seems to be the far more concrete, immediate phenomenon, being associated with images
of the oppressed, the wretched, and the downtrodden. A concept such as justice is
inconceivable without the injustice that should be banished from the world; and injustice is
connected, in turn, with what I want to call “practical images,” namely, mainly historical or
aesthetic images of social situations that express the point at issue in comprehensive and
evaluative terms. A “picture of justice” expresses a general and “thick” way of thinking about
justice and injustice.
2.
It is now time to say something more precise about what I mean by “justice” by way of an
initial approximation. I will restrict myself in what follows to political and social justice, hence to
the kind of justice that should exist within a political community, though for the present I will
leave to one side justice in the sense of the application of law, i.e. jurisprudence, which also falls
under this description. I am concerned, in Rawls’s terms, with the justice of the “basic structure”
of a society, that is, the structure that determines the fundamental relations between citizens
which are in need political regulation.
What could be meant by speaking of two “pictures of justice” in relation to this dimension?
Perhaps, one might think, the debate concerning justice and the good. It is common knowledge
3
Wittgenstein, PI, §520.
“A main cause of philosophical disease – a one-sided diet: one nourishes one’s thinking with
only one kind of example.” Wittgenstein, PI, §593, p. 155.
4
2
that this debate is as old as our philosophical tradition of reflection on justice, for it provides the
framework for Plato’s Republic in which Socrates poses the question of whether justice is a
condition of the good or happy life. The idea of the well-ordered soul provides the answer at both
the social and the individual level. In contemporary political philosophy, the question of the
relation between justice and the good life has been debated in a variety of ways since Rawls’ A
Theory of Justice; and indeed, one might be tempted to say that these debates involve two
different conceptions of justice: on the one hand, justice as part of the comprehensive question
concerning the good and, on the other, justice as an autonomous element of our normative
vocabulary. Associated with this is the related, though not identical, question of whether, even
assuming that justice is an independent normative concept, notions of what is “good for all” must
not be factored into the determination of the just or of what is due to all. I have dealt with these
questions in various places 5 ; however, I do not want to relate my discussion of the two pictures
of justice to them.
Neither is the difference I have in mind another important and much-discussed one,
namely, that between universalistic and contextualist approaches, in other words, between those
which assume that there are universal principles of justice that only have to be applied in
context-specific ways, and those which dispute this and see justice as a something that is
historically produced within the context of particular cultures, and hence is very much open to
change. 6 In my view, this alternative leaves room for intermediate approaches that differentiate,
for example, between specific “contexts of justice,” including a universalistic one; however, this
controversy will not be my primary concern here either.
You may now be thinking that the following distinction will surely be the central focus,
namely, the recent intense controversy over what should serve as the proper context of justice,
the basic structure of a community that is politically constituted as a state or world society as the
5
Rainer Forst, Contexts of Justice (Berkeley and Los Angeles: University of California Press,
2002) and Das Recht auf Rechtfertigung (Frankfurt/M.: Suhrkamp, 2007), pt. 1.
6 David Miller, “Two Ways to Think About Justice,” Politics, Philosophy & Economics 1, 2002, pp.
5-28.
3
totality of all individuals affected by global political, legal, or economic relations. This debate
between so-clled “statists” and “globalists” 7 is indeed a philosophically and politically central,
paradigmatic controversy (also and especially among Kantians); however this, too, I will leave
largely to one side.
3.
What I mean by the two pictures of justice is rather the following. Our thinking concerning
social or distributive justice is, in my opinion, held “captive” by a picture that prevents us from
getting at the heart of the matter. It is the result of a particular interpretation of the ancient
principle “To each his own” which has been central to our understanding of justice since Plato
and is interpreted in such a way that the primary issue is what goods individuals justly receive or
deserve – in other words, who “gets” what. This then leads either to comparisons between
people’s sets of goods and thus to relative conclusions, or it leads to the question of whether
individuals have “enough” of the essential goods, regardless of comparative considerations.
Granted, these goods- and distribution-centered, recipient-oriented points of view have their
merits, for distributive justice is, of course, a matter of allocating goods; nevertheless this picture
obscures essential aspects of justice, in the first place, the question of how the goods to be
distributed come “into the world,” hence questions of production and its just organization.
Furthermore, there is the second problem that the political question – i.e. the question of power –
of who determines the structures of production and distribution and in what ways is disregarded,
as though a great distribution machine could exist that only needs to be programmed correctly.
But not only is it imperative that such a machine should not exist, because it would mean that
justice would no longer be understood as an accomplishment of the subjects themselves but
would turn them into passive recipients; this thought also neglects, third, the fact that justified
claims to goods do not simply “exist” but can be arrived at only through discourse in the context
of corresponding procedures of justification in which – and this is the fundamental requirement of
7
For an analysis, see my “Towards a Critical Theory of Transnational Justice,” in Thomas
Pogge (ed.), Global Justice (Oxford: Blackwell, 2001), pp. 169-187.
4
justice – all are involved as free and equal individuals.
Finally, the goods-fixated view of justice also, fourth, largely leaves out of account the
question of injustice; for, by concentrating on distributive deficiencies of goods to be overcome,
someone who suffers want as a result of a natural catastrophe is equivalent to someone who
suffers want as a result of economic or political exploitation. Although it is correct that help is
required in both cases, in the one case it is required as an act of moral solidarity, in the other as
an act of justice conditioned by the nature of one’s involvement in relations of exploitation and
injustice and the specific wrong in question. Ignoring this difference can lead to a situation where
– in a dialectic of morality, as it were 8 – what is actually a requirement of justice is seen as an
act of generous assistance.
For these reasons, it is especially imperative when dealing with questions of distributive
justice to recognize the political point of justice and to liberate oneself from a false picture fixated
on quantities of goods (important though they may be). On a second, more apt picture, by
contrast, justice must be geared to intersubjective relations and structures, not to subjective or
putatively objective states of the provision of goods. Only in this way, by taking into consideration
the first question of justice – namely, the question of the justifiability of social relations and,
correspondingly, of the distribution of “justification power” within a political context – is a radical,
critical conception of justice possible, one which gets at the roots of relations of injustice.
4.
In light of this initial précis of my thesis, I would now like to render it plausible in a number
of steps. What might justify one in speaking of a false as opposed to a more apt picture of
justice, given that the goods- or recipient-centered picture can appeal to the time-honored
principle of suum quique? Is there, in contrast to this, a more original, deeper meaning of
justice? I believe so. In my view, the concept of justice has a core meaning whose essential
8
See my “A Dialectic of Morality,” in Andreas Follesdal and Thomas Pogge (eds.), Real World
Justice (Dordrecht: Springer, 2005), pp. 27-36.
5
contrasting concept is that of arbitrariness, 9 be it the arbitrary domination by individuals or by a
part of the community (for example, a class), be it arbitrary social contingencies that are
passively accepted as fate. Arbitrary domination is domination of some people by others without
legitimate reason, and when people engage in struggles against injustice they are combating
such forms of domination. The basic impulse that opposes injustice is not one of wanting
something or more of something; rather, it is the impulse of not wanting any longer to be
dominated, harassed, or overruled in one’s claim to and basic right to justification. This right
expresses the demand that no political or social relations should exist that cannot be adequately
justified toward those affected. This constitutes the profound political essence of justice, which is
not captured, but rather suppressed, by the dominant interpretations of the principle suum
quique. For the core issue of justice is who determines what is received by whom, i.e. the
question answered in Plato by the idea of the Good or that of the philosopher king. 10 In my
picture, the demand for justice is an emancipatory one that is captured by concepts such as
fairness, reciprocity, symmetry, equality, or even-handedness; reflexively speaking, it rests on
the claim to be respected as a subject of justification, i.e. to be respected in one’s dignity as a
being who offers and demands justifications. The person who lacks certain goods should not be
regarded as the primary victim of injustice but the individual who does not “count” in the process
of producing and allocating of goods.
5.
In his analysis of the difference between the political-theoretical traditions of social utopia
and natural law, Ernst Bloch captured the different pictures that play a role here in the following
words: “Social utopias are directed primarily to happiness, at least to the abolition of need and
the social conditions that involve or produce it. The natural law theories are directed...primarily to
dignity, to human rights, to legal guarantees of human security or freedom, as categories of
9
See also Rawls’s definition in A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard
University Press, 1999), pp. 5.
10 On this, see Pitkin’s critique of Plato in Wittgenstein and Justice, p. 306.
6
human pride. Accordingly, social utopia aims primarily at the abolition of human misery, natural
law primarily at the abolition of human degradation.” 11
I cannot discuss Bloch’s distinction between social utopia and natural law in greater detail
here or locate justice within it, for justice cannot be definitively assigned to one of these
traditions 12 ; nevertheless it is important to point out that we are dealing here with two competing
practical pictures with powerful normative implications: two pictures of bad social relations and
what it means to overcome them. In the one case, deprivation and suffering stand in the
foreground, in the other, degradation, unfreedom, and oppression; the former is primarily a
moral, the latter a moral-political picture. The latter, I want to claim, is bound up with political and
social justice: the struggle against injustice is the struggle against illegitimate social relations that
give rise to suffering, but it is not a struggle against suffering or misery as such, whatever its
source.
A word on Hannah Arendt may be advisable here in order to avoid misunderstandings. In
her analysis of the two forms of revolution, Arendt drew an extremely exaggerated distinction
between the “social” and the “political” and accordingly she suggested an alternative between
social compassion with the suffering and political solidarity with the oppressed; but in so doing
she missed the issue of justice altogether, for this can be assigned neither to one side nor the
other. 13 Thus my emphasis on the political dimension of justice should not be understood as
implying advocacy for political freedom over social equality. Rather, the concepts of freedom and
equality should be related to justice in such a way that the latter is the supreme principle in terms
of which we must assess what forms of freedom and equality can be legitimized and demanded
among free human beings with equal rights to justification. In this sense, one’s standing as a
political being concerned with justification is the essence of justice.
11
Bloch, Natural Law and Human Dignity, trans. Dennis J. Schmidt (Cambridge, Mass.: MIT
Press, 1986), pp. xxx.
12 Cf. my “Utopia and Irony,” forthcoming in Constellations.
13 Hannah Arendt, On Revolution (Harmondsworth: Pelican, 1977), see also Forst,
“Republikanismus der Furcht und der Rettung,” in Heinrich-Böll-Stiftung (ed.), Hannah Arendt:
Verborgene Tradition - Unzeitgemäße Aktualität (Berlin: Akademie Verlag, 2007), pp. 229-240.
7
6.
As suggested at the outset, one can trace a variety of paths through earlier and
contemporary discussions concerning justice. Yet the path that opens up when we pose the
question concerning the two pictures of justice is especially instructive, for from this perspective
certain adversaries unexpectedly find themselves in the same boat.
Consider the more recent debate concerning equality, for example. This actually points to
a number of discussions: on the one hand, the question ‘Equality of what?’ – of resources, of
welfare, or of capabilities 14 – and, on the other, the question ‘Why equality at all?’ What is
interesting here, however, is that both advocates and opponents of equality proceed from the
same picture, namely, the goddess Justitia, now interpreted as a mother who has to divide up a
cake and asks herself how she should go about it. 15 Thinkers like Stefan Gosepath and Ernst
Tugendhat (and implicitly also Isaiah Berlin) then argue for a “presumption of equal distribution”
of goods according to which reasons for legitimate unequal distributions – for instance, need,
merit, prior claims – must then be weighed. Or an egalitarian calculation of need satisfaction –
i.e. welfare – is applied that serves as the goal of distribution. But the question of how the cake
was produced and who is entitled to play mother remains largely unthematized, or an attempt is
made to answer it in terms of the distribution of a “good” of “power.” 16 But no such “good” exists
as something to be distributed; on the contrary, it comes about in a different way through
processes of reciprocal recognition; thus it is the precondition for there being a political context
within which questions of distribution can arise in the first place. 17 This issue of how a political
14
Cf. Gerald Cohen, “Equality of What? On Welfare, Goods, and Capabilities,” in Martha
Nussbaum and Amartya Sen (eds.), The Quality of Life (Oxford: Oxford University Press, 1993),
pp. 9-29.
15 Isaiah Berlin, “Equality,” in Concepts and Categories, ed. Henry Hardy (Harmondsworth:
Penguin, 1981); Ernst Tugendhat, Vorlesungen über Ethik (Frankfurt/M.: Suhrkamp, 1993), ch.
18; Stefan Gosepath, Gleiche Gerechtigkeit (Frankfurt/M.: Suhrkamp, 2004), pp. 250ff.
16 Tugendhat, Vorlesungen, p. 379; Gosepath, Gleiche Gerechtigkeit, p. 90
17 Iris Young, Justice and the Politics of Difference (Princeton: Princeton University Press,
1990); Jürgen Habermas, Between Facts and Norms (Cambridge, Mass.: MIT Press, 1996);
Rainer Forst, “Radical Justice: On Iris Marion Young's Critique of the 'Distributive Paradigm'“,
8
context comes about is the first question of justice, or, to stick with our practical picture, that of
how the mother and the cake come into the world.
Things are no better on the side of the critics of equality. In Harry Frankfurt’s view, the
primary concern of the defenders of egalitarian conceptions of justice cannot be the value of
equality at all; for if one asks them what is supposed to be so bad about inequality, they answer
by pointing to the negative consequences or to the badness of certain conditions that pertain in a
society of inequality, specifically, that certain individuals lack important goods for leading a
satisfying life. 18 What is bad about such a life is supposed to be that the people in question lack
essential goods, not that others are better off. 19 A more far-reaching desire for equality then
seems to be either a mistake or a reflection of envy complexes.
Angelika Krebs has taken up these arguments of Frankfurt (and others) and has argued
for the claim that “at least the especially important, elementary standards of justice are of a nonrelational kind,” 20 and that justice is concerned with creating “conditions of life befitting human
beings” that can be measured according to “absolute standards of fulfillment,” not according to
what others have. This approach – again invoking the image of a caring distributing mother, only
this time operating in accordance with different criteria – is called “nonegalitarian humanism” and
claims of itself the merit of being based on a conception of human dignity to which everyone can
agree. Lists of basic goods are invoked by means of which a universal concept of the goods
“necessary for a good life” can be generated.
Serious objections can be raised against these approaches. As it seems to me,
Frankfurt’s assertion that the decisive issue is not how much others have, but only whether I
have “enough,” is valid only on the assumption that conditions of background justice pertain, i.e.
Constellations 14, 2007, pp. 260-265.
Frankfurt, “Equality as a Moral Ideal,” in Frankfurt, The Importance of What we Care About
(Cambridge: Cambridge University Press, 1988), pp. 143-58; and “Equality and Respect,” in
Frankfurt, Necessity, Volition, and Love (Cambridge: Cambridge University Press, 1999), pp.
146-54.
19 Thus also Joseph Raz, The Morality of Freedom, (Oxford: Clarendon Press, 1988), ch. 9.
20 Angelika Krebs, “Einleitung: Die neue Egalitarismuskritik im Überblick,” in A. Krebs (ed.),
Gleichheit oder Gerechtigkeit (Frankfurt/M.: Suhrkamp, 2000), pp. 17f.
18
9
only when others have not previously taken advantage of me. Otherwise it could not be
reconciled with my dignity as a being who is in principle worthy of equal moral respect (a
standard that Frankfurt emphasizes). But this also implies that we must look elsewhere for
reasons for such background justice and that Frankfurt’s argument has nothing to contribute to
this.
Moreover, the idea of “having enough” or “getting enough” does not get at the essence of
justice: the issue of the avoidance of arbitrary domination. Justice is always a “relational” matter
in that it does not first inquire into subjective or objective states of affairs (such as deficiency or
excess) but into justifiable relations between human beings and into what they owe one another
for what reasons. It is always necessarily relational, even if it remains an open question in what
sense it must be comparative. Accordingly, justice cannot be explicated in terms of the pattern of
morally obligatory aid in specific situations of want or necessity; rather, it comes into play in
cases where relations between humans in need of justification are the fundamental issue, where
the individuals in question are integrated into a social context of cooperative production and
distribution of goods – or, at least, as is generally the case, into a context of “negative
cooperation,” i.e. of force or domination. There is an essential difference between whether
someone is denied certain goods and opportunities unjustly and without adequate justification or
whether he or she, for whatever reason, lacks certain goods (for example, as a result of a natural
catastrophe). To lose sight of the former is to miss or obscure the problem of justice and also
that of injustice. Duties of justice should not be reduced to “humanistic” or even “humanitarian”
duties of moral aid. In a context of justice, all allocations of goods are in principle in need of
justification because these goods are part of a context of cooperation, and reasons for particular
distributions must be found within this context; hence they are “relational” from the beginning,
specifically regarding the basis and measure of justice, i.e. who owes what to whom. Justice
requires that those involved in a context of cooperation should be respected as equals, and this
means that they are equally entitled participants in the social and political order of justification in
10
which the conditions of the production and distribution of goods are settled with their
participation. The state mandated assignment of goods in accordance with “absolute” standards
that abstract from the real context of justice or injustice is far from doing justice to the “dignity” of
the individual who seeks justice.
7.
But what exactly is supposed to be wrong with taking a sufficiently nuanced theory of basic
capabilities as the basis for a theory of justice that puts an end to discussions concerning basic
goods, resources, welfare, etc.? Isn’t justice after all concerned with the satisfaction of the basic
claim to be able to live an autonomous good life? Isn’t a theory that disregards the results of
distribution blind, blinder than any depiction of Justitia? Martha Nussbaum argues thus in her
study Frontiers of Justice against Rawls and for a “minimal level of justice” in accordance with
the basic list of capabilities and faculties that must be secured, and also including the right to
political participation. 21 A results-oriented view of justice knows the correct outcome and then
looks for the necessary procedure leading to it in the best way possible (in Rawls’s terms
“imperfect procedural justice”). 22 The procedures themselves are secondary. Against the
Rawlsian idea of “perfect procedural justice,” in which the acceptability of the result depends on
the quality of the procedure, Nussbaum argues as follows: “Defenders of outcome-oriented
views are likely to feel that procedural views put the cart before the horse: for surely what
matters for justice is the quality of life for people, and we are ultimately going to reject any
procedure, however elegant, if it doesn’t give us an outcome that squares well with our intuitions
about dignity and fairness. … it seems to the outcome-oriented theorist as if a cook has a fancy,
sophisticated pasta-maker, and assures her guests that the pasta made in this machine will be
by definition good, since it is the best machine on the market.” 23
Here, too, the pictures are revealing. First it was the cake, then the machine, but in both an
21
Martha Nussbaum, Frontiers of Justice (Cambridge, Mass.: Harvard University Press, 2006),
p. 74.
22 Rawls, Theory of Justice, pp. 74f.
23 Nussbaum, Frontiers, p. 82.
11
exclusive orientation to results: “The capabilities approach goes straight to the content of the
outcome, looks at it, and asks whether it seems compatible with a life in accordance with human
(…) dignity.” 24 Justice is a machine that produces something, and only this result counts, not the
internal workings of the machine. But this misses justice. Political and social justice is a matter of
how a context of political and social cooperation is constituted; and the first question in this
regard is how individuals are involved in the production of material and immaterial goods, so that
a result is just only if it is produced under conditions that can be accepted as just by all. It might
be a fine thing if a great Leviathan were to hand out manna, but that would have nothing to do
with political and social justice. And were a dictatorship to ensure that the basic capabilities were
largely assured, that would indeed be better by certain standards than a destitute democracy,
but it would not be more just. Justice is not a criterion for universal levels of goods or for all
efforts to overcome privation but for quite specific ones, namely, those which eliminate arbitrary
rule even where such rule would have productive consequences. The primary demand of justice
is not that human beings should obtain certain goods but that they should be actors equipped
with equal rights within a social basic structure who can raise specific claims to goods on this
basis.
8.
Aristotelian approaches such as that of Nussbaum share with consequentialist positions
like that of Peter Singer a blindness concerning this key point of justice. Even though the latter
makes clear that questions of responsibility for global redistribution are not a matter of
compassion but of direct individual moral duties, his argument overlooks the dimension of global
social relations that is relevant for justice. 25 For although it is correct that the divergence
between wealth and excess here and poverty and suffering over there is a moral scandal,
nevertheless the causes of these relations and their structures must be thematized when we are
24
Ibid., p. 87.
Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1, 1972, pp.
229-243 and One World: The Ethics of Globalization (New Haven, CT: Yale University Press,
2002).
25
12
speaking of justice. Building up a large “aid” network can then be an important step but it does
not address the variety of global relations of dependence and exploitation, and hence does not
even pose the proper question of injustice and unfairness – for example, as one of structural
oppression – but reconfigures the situation as one of individual duties of assistance in the face of
suffering whose causes remain in the dark. A moral perspective geared to individuals as givers
and receivers is blind to structural injustice and justice. Taking these reflections as a starting
point – and this is something that I can only mention in passing here – one could arrive at a
position on the problematic of transnational justice that goes beyond the controversy between
statists and globalists to which I alluded at the outset.
9.
Let us take a step backwards for a moment. I stated above that justice represents the
human force and factor of opposing relations of arbitrary domination, whether by individuals,
classes, or groups. I defined arbitrariness initially as domination “without reason,” as forms of
rule lacking adequate justification, on the assumption that a just social order is one to which free
and equal individuals can give their assent, and not just assent in a counterfactual sense but
assent based on institutionalized justification procedures. This follows recursively from the fact
that political and social justice is concerned with norms of an institutional basic structure that
claim reciprocal and general validity. Thus a supreme principle holds within such a framework,
the principle of general-reciprocal justification, which states that every claim to goods, rights, or
liberties must be justifiable in a reciprocal and universal manner, such that one side cannot
simply project its reasons onto the other but must justify itself discursively.
According to this principle, as we have seen, each member of a context of justice has a
fundamental right to justification, that is, a right to appropriate reasons for the norms of justice
that are supposed to hold generally. Respect for this right is a universal requirement and this is
the basis of the moral equality that provides the foundation for farther-reaching claims to political
and social justice. Every further norm of justice is “relational” in the sense that it must be
13
derivable from a procedure of reciprocal-general justification. Then requirements of justice are
not moral acts of assistance but strictly obligatory acts within a social system of cooperation.
The decisive criteria of justice, therefore, are those of reciprocity and generality,
notwithstanding all plurality of goods and normative viewpoints concerning the allocation of
educational opportunities, health care goods, etc. These criteria serve to filter out unacceptable
claims to privilege, for the intrinsic social dynamic of justice is always geared in the first instance
to the question: which positions of privilege are not justified towards those who do not enjoy
these advantages but are nevertheless supposed to recognize them?
With this we arrive at the central insight for the problem of political and social justice,
namely, that the first question of justice is the question of power. For justice is not only a matter
of which goods on what scale should be legitimately allocated to whom but also of how these
goods initially come into the world and of who decides on how they should be allocated and how
this allocation is made. Theories of a primarily allocative-distributive kind are correspondingly
“oblivious to power” in that they conceive of justice exclusively from the “recipient side” and call
for “redistribution,” without posing the political question of how the structures of production and
allocation of goods are decided upon. That the question of power is the first question of justice
means that the domains of justice are to be sought where the central justifications for a social
basic structure must be provided and the institutional ground rules that determine social life from
the bottom up are laid down. Everything depends, if you will, on the relations of justification that
pertain within a society. Power, understood as the individual’s effective “power of justification,” is
the supreme good of justice, i.e. the “discursive” power to demand and provide justifications and
to challenge false legitimations. Thus I argue for a “political turn” in the justice debate and for a
critical theory of justice as a critique of relations of justification.
The argument outlined makes possible an autonomous, reflexively grounded theory of
justice that rests on no other values or truths besides the principle of justification itself – which
already says something, however succinct, concerning the relation between the right and the
14
good. The principle in question, however, is not merely a principle of discursive reason but is
itself a moral principle. This constitutes the Kantian character of the approach, which means that
it concerns the autonomy of those for whom certain norms of justice are supposed to be binding
– in other words, the autonomy and “dignity” that consists in being subject to no norms or
structures other than those which can be justified toward the individual. This dignity is violated
when individuals are regarded merely as recipients of redistributive measures and not as
independent agents of justice.
10.
A comprehensive theory of political and social justice must be constructed on the basis of
this principle, something which I can only allude to here. First a conceptual distinction is to be
made between fundamental (minimal) and maximal justice. The task of fundamental justice is
the construction of a basic structure of justification, the task of maximal justice the construction
of a fully justified basic structure. The former is a necessary precondition for accomplishing the
latter, i.e. a “putting-into-effect” of justification through discursive-constructive, democratic
procedures in which the “power of justification” is distributed as evenly as possible among the
citizens. This calls for certain rights and institutions and a multiplicity of means and specific
capabilities 26 and information, up to and including real opportunities to intervene and exercise
control within the basic structure – hence, not a “minimalist” structure, yet one justified in
material terms solely on the basis of the principle of justification. The question of what is included
in this minimum must be legitimized and assessed in accordance with the criteria of reciprocity
and generality. The result is a higher-level, discursive version of the Rawlsian “difference
principle,” which, according to Rawls, confers a “veto” on those who are worst off: “those who
have gained more must do so on terms that are justifiable to those who have gained the least.” 27
26
Here the “capabilities” approach has a justification, though one associated with the task of
constructing fundamental justice. In a similar sense, though one which does not draw on the
distinction in question, see Elisabeth Anderson, “What is the Point of Equality?,” Ethics 109,
1999, pp. 287-337.
27 Rawls, Theory of Justice, p. 131.
15
This principle does not as a result itself become a particular principle of distribution (as in
Rawls), however, but a higher-level principle of justification of possible distributions. 28
To put it in apparently paradoxical terms, fundamental justice is thus a substantive starting
point of procedural justice. Arguments for a basic structure are based on a moral right to
justification in which individuals themselves have real opportunities to determine the institutions
of this structure in a reciprocal-general manner. Fundamental justice assures all citizens an
effective status “as equals,” as citizens with real opportunities for participation and influence.
Minimal justice is violated when the primary justification power alluded to is not equally
distributed in the most important institutions.
On this basis it becomes possible to strive for a differentiated, justified basic structure, i.e.
maximal justice. Democratic procedures must determine which goods are to be allocated to
whom by whom on what scale and for what reasons. Whereas fundamental justice must be laid
down in a recursive and discursive manner by reference to the necessary conditions of fair
justification opportunities, other substantive considerations, and certainly also social-relative
considerations (in Michael Walzer’s sense), also enter into considerations of maximal justice. 29
For example, how goods, such as health, work, leisure, etc., should be allocated must on this
approach always be determined first in the light of the functional requirements of minimal justice,
and then, in addition, with a view to the corresponding goods and the reasons that favor one or
the other distributive scheme (which are also subject to change). As long as fundamental justice
pertains, such discourses will not fall prey to illegitimate inequalities of power. Once again it
28
Here we must be alert to the fact that the group of the “worst off” can change according to
which good is to be allocated. The unemployed, single parents, the elderly, the sick, or ethnic
minorities, to mention just a few, could have priority in a given instance and combinations of
these characteristics in particular aggravate the problem (especially in the light of the history of
gender relations).
29 Michael Walzer, Spheres of Justice (New York: Basic Books, 1983). In later writings, Walzer
has modified his approach in such a way that the principle of “democratic citizenship” plays the
leading role in all spheres. See his “Response” in David Miller and Michael Walzer (eds.),
Pluralism, Justice, and Equality (Oxford: Oxford University Press, 1995), esp. pp. 286ff.
16
becomes apparent why the first question of justice is the question of power. 30
What, then, is the ultimate difference between the two pictures of justice that I have
differentiated? Perhaps it resides in two different “pictures of human beings,” as beings who
should not lack certain goods that are necessary for a “good” life or one “befitting a human
being,” on the one hand, and as beings whose dignity consists in not being subject to unjustified
domination, on the other. On my understanding, the latter is central for the grammar of justice.
Translated by Ciaran Cronin
30
On this, see my “First Things First. Redistribution, Recognition and Justification,” European
Journal of Political Philosophy 6, 2007, pp. 291-304.
17