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Historical Injustice, Rawlsian Egalitarianism, and Political Contestation
Published online by Cambridge University Press: 20 July 2015
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Jeremy Waldron has plausibly argued that historical injustices can be superseded by serious efforts to achieve justice in the present and future. This essay considers what it might mean to arrange things justly in the relevant way, focusing on the work of John Rawls as our best existing template for conceptualizing justice of this kind. The essay outlines ways in which a Rawlsian system of social justice seems unable to meet its own normative aspirations and unable to provide a model for overcoming historically constituted disadvantage. As the essay argues, the society described by Rawls is likely to remain divided by inherited class structures, given the motivational requirements of markets and the psychological effects of the division of labor, so that inheritors of historical injustice would remain disadvantaged even if Rawlsian principles were put into practice. The essay considers some speculative methods for overcoming these inequalities, and argues that the most promising approach in circumstances as we know them will draw on already-existing programs of compensation for historical expropriation. The essay also argues that Rawlsians should take seriously the application of the difference principle to the distribution of political authority alongside material resources, suggesting that we should give careful thought to how political structures can protect the interests of the least advantaged. The paper argues that, once again, existing mechanisms for Aboriginal self-governance are more appropriate as a system of forward-looking justice than they may otherwise appear. The essay argues in closing that political philosophy should give increased attention to the ethics of political action and to conflict among the disadvantaged in imperfect circumstances.
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- Copyright © Canadian Journal of Law and Jurisprudence 2014
References
I would like to thank Douglas Sanderson for multiple discussions of these issues and for reactions to this paper, along with Christopher Lebron, Dale Turner, Melissa Williams, Dennis McKerlie, Shmulik Nili, and a Toronto conference audience. Gerald Doppelt and Marcus Ohlström offered comments on an earlier paper from which some of these arguments emerged, while Deborah Baumgold offered general encouragement.
1. See especially Waldron, Jeremy, “Superseding Historic Injustice” (1992) 103 Ethics 4 CrossRefGoogle Scholar [Waldron, “Superseding”]. For an extended version of this argument, see also Waldron, Jeremy, “Historic Injustice: Its Remembrance and Supersession” in Oddie, Graham & Perrett, Roy W, eds, Justice, Ethics, and New Zealand Society (Auckland: Oxford University Press, 1992) 139 Google Scholar [Waldron, “Historic Injustice”]. More recently, it has been restated in Waldron, Jeremy, “Redressing Historic Injustice” (2002) 52 UTLJ 135 CrossRefGoogle Scholar. These arguments have not gone unchallenged. See, e.g., in this journal Sanderson, Douglas, “Against Supersession” (2001) 24 Can JL & Jur 155 Google Scholar [Sanderson, “Against Supersession”]; see also Sanderson, Douglas, “Redressing the Right Wrong: The Argument from Corrective Justice” (2012) 62 UTLJ 93 CrossRefGoogle Scholar [Sanderson, “Redressing”].
2. I use the language of “territories” here as synonymous with “property”, although there are reasons to believe that political control over territory is significantly different than property ownership in any simple sense. See, e.g., Kolers, Avery, Land, Conflict, and Justice: A Political Theory of Territory (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar; see also Sanderson, “Redressing”, supra note 1.
3. Waldron, “Superseding”, supra note 1 at 24-25.
4. Obviously this method of framing the issue suggests that expropriations are historical matters rather than ongoing ones. In many areas, however, losses of land continue into the present day (e.g., in parts of the Canadian North slated for economic development).
5. Waldron, “Superseding”, supra note 1 at 18-19.
6. See especially Waldron, Jeremy, “Homelessness and the Issue of Freedom” in Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993) 309.Google Scholar
7. Waldron, “Superseding”, supra note 1 at 26.
8. I am interpreting Waldron’s intentions here, which are less clear in his texts than one might hope. For parallel approaches to this aspect of Waldron’s argument, see Hendrix, Burke A, “Context, Equality, and Aboriginal Compensation Claims” (2011) 50 Dialogue: Can Phil Rev 669 CrossRefGoogle Scholar [ Hendrix, , “Context”] and Hendrix, Burke A, “Political Theorists as Dangerous Social Actors” (2012) 15 Critical Rev Soc & Pol Phil 41 CrossRefGoogle Scholar [Hendrix, “Political Theorists”].
9. Waldron, “Historic Injustice”, supra note 1 at 171. Surprisingly, Waldron chose to drop this conclusion from the more widely-circulated version of his article (Waldron, “Superseding”, supra note 1).
10. Waldron (“Superseding”, supra note 1 at 27) suggests that supporters of reparation for historical losses are morally well-meaning but confused: “Repairing historic injustice is, as we have seen, a difficult business and, as a matter of fact, is almost always undertaken by people of good will.” The assumption seems to be that anyone who has sufficient moral motivation to support a program of reparation must also have sufficient motivation to support a generalized program of economic redistribution, although no reasons are given for this debatable assumption.
11. I also focus on Rawls because of the quality of his arguments, which are usually more thorough and conscientious than those of his followers and rivals.
12. Rawls, John, A Theory of Justice, revised ed (Cambridge: Harvard University Press, 1999) at 53 Google Scholar [Rawls, Theory].
13. Ibid.
14. A vast set of philosophical positions exist in the literature on ideal and non-ideal theory that consider questions of this kind. See, e.g., Geuss, Raymond, “Liberalism and its Discontents” (2002) 30 Political Theory 320 CrossRefGoogle Scholar; Geuss, Raymond, Philosophy and Real Politics (Princeton: Princeton University Press, 2008)CrossRefGoogle Scholar; Mills, Charles, “‘Ideal Theory’ as Ideology” (2005) 20 Hypatia 165 Google Scholar; Farrelly, Colin, “Justice in Ideal Theory: A Refutation” (2007) 55 Political Studies 844 CrossRefGoogle Scholar; and Sen, Amartya, “What Do We Want from a Theory of Justice?” (2006) 103 J Phil 215 CrossRefGoogle Scholar.
15. For further discussion of the relevance of this concession in ideal theories of justice, see Hendrix, “Political Theorists”, supra note 8.
16. It may be possible within extremely small societies, however. See, e.g., Taylor, Michael, Community, Anarchy, and Liberty (New York: Cambridge University Press, 1982).CrossRefGoogle Scholar
17. For the role of social discourse, see, e.g., Jakobson, Janet R, “Queer Is? Queer Does? Normativity and the Problem of Resistance” (1998) 4 GLQ 511 at 522CrossRefGoogle Scholar. See also Hendrix, “Political Theorists,” supra note 8 and Hendrix, Burke A, “Where Should We Expect Social Change in Non-Ideal Theory?” (2013) 41 Political Theory 116 CrossRefGoogle Scholar [Hendrix, “Non-Ideal Theory”].
18. Something like this is implied in Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).Google Scholar
19. For my concerns see Hendrix, “Political Theorists”, supra note 8 and Hendrix, “Non-Ideal Theory” supra note 17.
20. This is a very old debate. Indeed, one could read much of Adam Smith’s work as an extensive attempt to work through just such uncertainties. When he speaks of the human tendency toward self-interest ( An Inquiry into the Nature and Causes of the Wealth of Nations, ed by Mazlish, Bruce (Indianapolis: Bobbs-Merrill, 1961)Google Scholar, bk 1 ch 2), it is less in praise than simple acknowledgment: “Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of. It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens.” To what degree have Rawlsians and other egalitarians found a method for circumventing these limits?
21. There are complex debates about the degree to which Rawls approved of material self-interest. For the charge that he compromises with self-interest in problematic ways, see, e.g., Cohen, GA, Rescuing Justice and Equality (Cambridge: Harvard University Press, 2008)CrossRefGoogle Scholar and Cohen, GA, “Where the Action Is: On the Site of Distributive Justice” (1997) 26 Phil & Pub Affairs 3 CrossRefGoogle Scholar.
22. Thus we have more nuanced ways of measuring inequality, such as those of Amartya Sen (see, e.g., Development as Freedom (New York: Anchor Books, 1999)Google Scholar at ch 4), but not a better understanding of how to create legal structures that will better maintain on-the-ground egalitarianism. Generally prescriptions for pursuing egalitarianism are of the old style—for governmental redistribution through taxation or other similar mechanisms.
23. Presumably it is not accidental that all existing legal systems give powerful weight to historically-constituted methods of distribution. See, e.g., Macklem, Patrick, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001)CrossRefGoogle Scholar, ch 3, especially at 78-85; see also Hendrix, “Context”, supra note 8.
24. Rawls is drawing on a venerable tradition in this regard. See, e.g., Smith, supra note 20 at bk 1 ch 2: “The difference of natural talents in different men is, in reality, much less than we are aware of; and the very different genius which appears to distinguish men of different professions, when grown up to maturity, is not upon many occasions so much the cause, as the effect of the division of labor.”
25. Rawls, John, Political Liberalism (New York: Columbia University Press, 1993) at 269–70Google Scholar [Rawls, Political Liberalism]. See also Rawls, Theory, supra note 12 at 241: “In the absence of some differences in earnings as these arise in a competitive scheme, it is hard to see how, under normal circumstances anyway, certain aspects of a command economic inconsistent with liberty can be avoided.”
26. Rawls, Theory, supra note 12 at 87.
27. Rawls’s understanding of “fair equality of opportunity” is surprisingly ambiguous. The natural meaning of this phrase would be to ensure that all persons have equal chances to compete for whatever social positions already exist. However, Rawls’s most explicit statements about the principle seem to imply that it relates to the maximal creation of kinds of opportunities (such as perhaps potential kinds of employment?): “Now to be consistent with the priority of fair opportunity over the difference principle, it is not enough to argue, as Burke and Hegel appear to, that the whole of society including the least favored benefit from certain restrictions of equality of opportunity. We must also claim that the attempt to eliminate these inequalities would so interfere with the social system and the operations of the economy that in the long run anyway the opportunities of the disadvantaged would be even more limited…. We must hold that a wider range of more desirable alternatives is open to them than would otherwise be the case.” Rawls, Theory, supra note 12 at 265.
28. Cf Rawls, Political Liberalism, supra note 25 at 270: “There is no way of knowing what we might have been had these things been different.”
29. One might be mislead by talk of “skills” here, to begin imagining specific kinds of narrowly-construed crafts—as if the children of laborers would inherit their parents capacity for turning bolts, while the children of businessmen would inherit a tendency toward drafting sales contracts. But this masks the real kinds of inheritance, which are likely to be more subtle. The children of laborers are likely to inherit skills in handling material objects as a general category, for example, and of responding to inclement weather and other unpredictable natural conditions, while the children of businessmen are likely to inherit a facility for bargaining and other “people skills”. Unfortunately, our common parlance fails to do justice to the broad range of skills held by laborers—only some people are dignified with the terminology of “skilled laborers”, for example.
30. E.g., Rawls, Theory, supra note 12 at 273: “Having done various things encouraged by the existing arrangements, they now have certain rights, and just distributive shares honor these claims. A just scheme, then, answers to what men are entitled to; it satisfies their legitimate expectation as founded upon social institutions.”
31. For obvious reasons, they are likely to see themselves as deserving these positions in an external, moral, sense as well, but perhaps one ought not acknowledge this kind of human faw at this stage of the argument. Rawls himself (see, e.g., Theory, supra note 12 at 273) is ambiguous on this point, but wants to make clear that his readers should not regard these persons as entitled in a full sense: “But what they are entitled to is not proportional to nor dependent upon their intrinsic worth. The principles of justice that regulate the basic structure and specify the duties and obligations of individuals do not mention moral desert, and there is no tendency for distributive shares to correspond to it.” Whether these kinds of balances could be maintained within the psychologies of real persons is an open question.
32. Rawls is evasive about the economic necessity of social classes, but never seems to doubt that they will exist. See, e.g., Political Liberalism, supra note 25 at 270: “Such inequalities, we may assume, are inevitable, or else necessary or highly advantageous in maintaining effective social cooperation. Presumably there are various reasons for this, among which the need for incentives is but one.”
33. Rawls, Theory, supra note 12 at 87; cf at 448.
34. The most obvious point of challenge lies within the lexical priority that Rawls grants to holding careers open to those with talent, but he is clear about his rejection of schemes that might, for example, give equalizing schooling to those born into less favorable social positions: “The difference principle is not of course the principle of redress. It does not require society to try to even out handicaps as if all were expected to compete on a fair basis in the same race.” Rawls, Theory, supra note 12 at 86.
35. Cf Rawls, Political Liberalism, supra note 25 at 267: “The tendency is … for background justice to be eroded even when individuals act fairly; the overall result of separate and independent transactions is away from and not toward background justice.”
36. In this way, such an outcome seems likely to undermine, at least psychologically, the goals that Rawls attributes to political philosophy as an overall project: “Political philosophy may try to calm our frustration and rage against our society and its history by showing us the way in which its institutions, when properly understood from a philosophical point of view, are rational and developed over time as they did to attain their present, rational form.” Rawls, John, Justice as Fairness: A Restatement, ed by Kelly, Erin (Cambridge: Harvard University Press, 2001) at 3.Google Scholar
37. Obviously, theorists have been concerned about these effects for a long time—consider most obviously Plato’s grounds for abolishing the family in Republic. Rawls considers this possibility as well (Theory, supra note 12 at 448): “Is the family to be abolished then? Taken by itself and given a certain primacy, the idea of equal opportunity inclines in this direction. But within the context of the theory of justice as a whole, there is much less urgency to take this course.” It seems true that, given the alternatives of abolishing the family or leaving it intact, we should stick to the latter, but this does not entail that Rawls is correct about the effects of the theory as a whole.
38. Given this mention of culture in a discussion about Rawls, one might tend to read the argument offered here as a variation of that of Kymlicka, Will, e.g., as most clearly outlined in Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989)Google Scholar. I see the argument somewhat differently, however. Kymlicka is concerned centrally with the question of whether the ability to pursue cultural practices should be counted as a primary good, which tends to turn our attention to “outsiders”—we worry about “liberalism” vs. “culture”. I am more concerned here with the profound difficulties that cultural variation poses to fair opportunity, without claiming that the protection of culture for its own sake must be a primary good (although given the pervasiveness of “culture”, it is hard to see how any theory purporting to protect individual rights can fail to give it heavy weight). At its core, I see my own argument as more similar to that of Iris Young, Marion, e.g., in Inclusion and Democracy (Oxford: Oxford University Press, 2000).Google Scholar
39. I insert quotation marks to express skepticism about how this project is framed. For concerns about liberalism as a conceptual tool, see, e.g., Denis, Claude, We Are Not You: First Nations and Canadian Modernity (Peterborough: Broadview Press, 1997) at 151–54CrossRefGoogle ScholarPubMed; concerns about cultural recognition will be addressed later in this essay.
40. Iris Marion Young has discussed these kinds of differences in ways of showing respect under the category of “greeting”. See, e.g., Young, supra note 38 at ch 3.
41. Taking notice of this fact was one of the most important contributions of Iris Young’s work. See, e.g., Young, supra note 38 at ch 3.
42. Books of etiquette, particularly from an earlier era, can often help us to recognize the cultural peculiarities of our own practice. See, e.g., the discussion of proper male attire in Wilson, Margery, The New Etiquette: The Modern Code of Social Behavior (New York: Collier, 1940)Google Scholar at ch 8, including discussions of appropriate hats, glove colors, waistcoats, and tie styles. These recommendations are especially interesting when read in conjunction with the book’s concluding chapter on “the art of living”: “[The readers of this book] belong to the new order for whom the new etiquette is written if they’ve caught the song of life—if they’ve felt their hearts fill up to bursting over the glory of the human soul…. They’re dynamic with ideals. They’re learning to be artists in living. They’re willing to obey the forms that preserve civilized behavior. They’re sportsmen, playing the game of life according to the rules” (600). Wilson’s conflation of “the beautiful” with “our beautiful” probably remains just as prevalent today, even if it may sometimes be more artfully concealed.
43. There remains an embarrassing tendency among academics to lament the mass culture and consumerism of much of society, and particularly—if only tacitly and sotto voce—that associated with the lower middle class and working poor. Often they are portrayed as if, lacking any real standards of their own, they simply adopted uncritically what was given to them. This tendency is particularly worrisome among a group that generally draws its alternative from the cultural productions associated with high European colonialism (e.g., operas, classical music, “literature”, and so on).
44. Waldron clearly tends in this direction—see, e.g., “What is Cosmopolitan?” (2000) 8 J Pol Phil 227. For a cogent reply, see Mehta, Pratap Bhanu, “Cosmopolitanism and the Circle of Reason” (2000) 28 Political Theory 619 CrossRefGoogle Scholar.
45. For an illustration of extreme forms of cultural change, see Lear, Jonathan, Radical Hope: Ethics in the Face of Cultural Devastation (Cambridge: Harvard University Press, 2006).Google Scholar
46. Consider, for example, the debate about “Ebonics”, and about what kind of education would best serve African Americans in the United States. No one pretends that speakers of traditional African American English in the United States are less competent to be mathematicians or pharmacists because of speech patterns—what is claimed instead is that they will never win approval from “mainstream society” unless they conform to its expectations.
47. I am intentionally stereotyping here, but the basic point needs to be thought about seriously: what are the cultural expectations associated with academic life, and how to do we go about enforcing them, teaching them to our students and junior colleagues, and so on?
48. Those who have very high hopes for what programs of education can accomplish, particularly where cultural learning is involved, would do well to consider the history of residential schools in the United States and Canada, and of similar programs in other countries. Generally, these schools destroyed cultural reproduction while offering little escape from class domination; they were thus a failure in several axes. Do we now have more reliable models?
49. This is the most common strategy for supporting directed attention to Aboriginal claimants, and I believe it is broadly correct. For discussions of these patterns of disadvantage, see among many others Ivison, Duncan, Postcolonial Liberalism (Cambridge: Cambridge University Press, 2002)Google Scholar; Levy, Jacob T, The Multiculturalism of Fear (Oxford: Oxford University Press, 2000)CrossRefGoogle Scholar; Kymlicka, supra note 38; Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).CrossRefGoogle Scholar
50. What kinds of special benefits might these be? At least potentially, they may be moral ben-efts stemming from the non-coercive and non-bureaucratic values and practices found within many Aboriginal traditions. See, e.g., Hendrix, Burke A, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (University Park: Pennsylvania State University Press, 2008)Google Scholar at ch 8 [Hendrix, Ownership].
51. See Hendrix, “Context”, supra note 8.
52. For more in-depth consideration of these positions and their difficulties, see Hendrix, “Context”, supra note 8.
53. For some considerations along these lines, see, e.g., Hendrix, Burke A, “Memory in Native American Land Claims” (2005) 33 Political Theory 763 CrossRefGoogle Scholar.
54. Consider the text of the principles themselves: “First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” (Rawls, Theory, supra note 12 at 53). Clearly voting is not an “equal basic liberty”, but a method of shaping the kinds of economic and social inequalities that exist.
55. Rawls, Theory, supra note 12 at 53 [emphasis added].
56. See, e.g., Williams, Melissa S, Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton: Princeton University Press, 1998)Google Scholar; Christiano, Thomas, The Rule of the Many: Fundamental Issues in Democratic Theory (Boulder: Westview Press, 1996).Google Scholar
57. See, e.g., the discussions in Walzer, Michael, On Toleration (New Haven: Yale University Press, 1997)Google Scholar. For a distinctly Rawlsian approach to state construction and federalism, see King, Loren A, “The Federal Structure of a Republic of Reasons” (2005) 33 Political Theory 629 CrossRefGoogle Scholar.
58. I have not said much about “culture” in the sense discussed in the previous section here, but it should be obvious what sort of role it will play. Often candidates for office will be viable only if they meet certain criteria. There are few open atheists or Muslims in American government, for example, and few seem likely to reach these offices in the near future, even if they would otherwise be perfectly competent (or even excellent) in meeting the needs of their constituents. Should we thus try to educate American voters to elect such persons, or should we try to train children to adhere to dominant standards, so that they have greater chances of actually entering political life?
59. Rawls, Theory, supra note 12 at 53. Rawls here, as elsewhere throughout the book, combines voting rights with other kinds of civil rights intended to protect individual liberty. He provides no decisive explanation for this kind of combination, however, and the arguments here are intended to demonstrate that it was simply an error on his part, in which he took the existing features of political life as we know it too much for granted.
60. See, e.g., Sanderson, “Right Wrong”, supra note 1 and Sanderson, “Against Supersession”, supra note 1.
61. For a survey of the kinds of options which American Indian leaders in the United States have tended to pursue in practice, see Bruyneel, Kevin, The Third Space of Sovereignty (Minneapolis: University of Minnesota Press, 2007)Google Scholar. In defense of rights to full political separation, see Hendrix, Ownership, supra note 50.
62. In New Zealand, seven seats in parliament are currently reserved for representatives elected specifically by those who identify as Maori.
63. As, for example, proposed by Canada’s Royal Commission on Aboriginal Peoples.
64. See, in more detail, Hendrix, “Context”, supra note 8.
65. For attempts in this direction, see Hendrix, “Context”, supra note 8 and “Political Theorists”, supra note 8.
66. More systematically, see Hendrix, “Non-Ideal Theory”, supra note 17.