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Socially Constructed Conceptions of Distributive Justice: The Case of Affirmative Action

Published online by Cambridge University Press:  05 August 2009

Extract

In the last quarter-century Americans have carried on a lively argument over the nature of distributive justice, equality of opportunity and particularly the appropriateness of affirmative action. Indeed two distinct conceptions of equality of opportunity, drawing on conflicting underlying visions of distributive justice and adopting different stances toward affirmative action, have emerged in both academic and popular circles. Thompson, Ellis and Wildavsky's Cultural Theory can be applied to explain the form and focus of this argument as a struggle between the conflicting preferences of rival—individualistic and egalitarian—ways of life. This analysis shows how the longevity and intractable character of the argument are consequences of the social embedding of preferences. That is, individualists and egalitarians cannot further their preferred ways of life with respect to these issues without engendering this conflict. The irreconcilable character of this clash is further underscored by Cultural Theory's capacity to illuminate oversights in the most sophisticated of extant efforts to bridge these opposing views.

Type
Research Article
Copyright
Copyright © University of Notre Dame 1994

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References

1. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).Google Scholar

2. Pogge, Thomas W., Realizing Rawls (Ithaca, NY: Cornell University Press, 1989),Google Scholar offers a particularly clear interpretation of these aspects of Rawls's thought.

3. See Rae, Douglas et al. , Equalities (Cambridge, MA: Harvard University Press, 1981),Google Scholar particularly chap. 6, for a discussion of maximin and related conceptions of equality.

4. Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).Google Scholar

5. In a later work Rawls applied procedural terminology—“pure procedural justice”—to his approach. See Rawls, John, “Kantian Constructivism in Moral Theory: the Dewey Lectures,” Journal of Philosophy 77 (09 1980): 515–72.Google Scholar His idea was that, if in an original position involving a veil of ignorance about personal circumstances institutional requirements were specified carefully enough, then any conditions that the operation of these institutions produced would be just. But the procedures—institutional operations—and thus the outcomes they allow are constrained by the initial specification in ways individualists would find troubling.

6. See, for example, Rosenfeld, Michel, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven, CT: Yale University Press, 1991), chaps. 2–5.Google Scholar

7. See Hochschild, Jennifer L., What's Fair? American Beliefs About Distributive Justice (Cambridge, MA: Harvard University Press, 1981), chap. 3.Google Scholar

8. A particularly clear example of this practice is provided by Rosenfeld, , Affirmative Action and Justice, pp. 309311,Google Scholar who adopts an elaborate “full reversible reciprocity” procedure for achieving consistent perspectives and then laments (pp. 311–13) the fact that participants in the actual argument do not hold the views they “should” if only they were to accept the constraints of this procedure. Rosenfeld concludes that persons with obstreperous views can be justly excluded from consideration in his volume, but he cannot exclude them from political life. On the procedure in question, see Kohlberg, Lawrence, “Justice as Reversibility,” in Philosophy, Politics, and Society, ed. Laslett, Peter and Fishkin, James S., 5th series (New Haven, CT: Yale University Press, 1979), pp. 257–72.Google Scholar

9. I am using the labels egalitarian and individualistic to denote precise concepts that I introduce gradually. Thus the reasoning underlying my claims for these concepts will be revealed progressively.

10. See Greenstone, J. David, “The Transient and the Permanent in American Politics: Standards, Interests, and the Concept of Public,” in Public Values and Private Power in American Politics, ed. Greenstone, J. David (Chicago, IL: University of Chicago Press, 1982), pp. 333;Google Scholar and Ellis, Richard J., American Political Cultures (New York: Oxford University Press, 1993).Google Scholar

11. Barry, for instance, devotes nearly all of his attention in his fine recent tome on distributive justice to the individualistic and egalitarian forms most advocated by Americans. See Barry, Brian, Theories of Justice, vol. 1 of A Treatise on Social Justice (Berkeley: University of California Press, 1989),Google Scholar particularly sections 34 and 35, respectively. Hierarchy is mentioned and quickly dismissed: pp. 5–6 and 349. Perhaps because he focuses exclusively on highly sophisticated expres sions of these ideas, Barry effectively misses the connection between ideas and ways of life. (See exceptions pp. 349 and 352.) So although he recognizes that arguments over distributive justice frequently do not meet the common cognitive and moral criteria required for a debate (p. 371), Barry lacks any social explanations (e.g., that various arguments are socially embedded in rival ways of life) for why some people adopt egoistic criteria while others select the standard of impartiality.

12. By “affirmative action” I refer to public practices that favor persons held to be disadvantaged either individually or as members of particular groups defined by factors such as race, disability or gender in the attainment of scarce educational or occupational positions. Such practices are viewed by some to include distributive activities involving the preparation of disadvantaged potential applicants. In this article I will focus primarily on other, compensatory efforts aimed at attracting applications from the disadvantaged, applying favorable procedures in evaluating the applications of disadvantaged persons, and developing special programs to facilitate the advancement of disadvantaged persons who acquire educational or occupational positions. For background on this general issue see Burstein, Paul. Discrimination, Jobs, and Politics: The Struggle for Equal Employment Opportunity in the United States Since the New Deal (Chicago, IL: University of Chicago Press, 1985), chaps. 2–5;Google Scholar and for an account of the development of affirmative action see Belz, Herman, Equality Transformed: A Quarter-Century of Affirmative Action (New Brunswick, NJ: Transaction, 1991), chaps. 1–3.Google Scholar

13. Gewirth, Alan, Reason and Morality (Chicago, IL: University of Chicago Press, 1978).Google Scholar

14. See Thompson, Michael, Ellis, Richard, and Wildavsky, Aaron, Cultural Theory (Boulder, CO: Westview, 1990).Google Scholar

15. Fishkin, James S., Justice, Equal Opportunity, and the Family (New Haven, CT: Yale University Press, 1983).Google Scholar

16. See Fishkin, Justice, Equal Opportunity, and the Family; and relatedly, MacPherson, C. B., “Economic Penetration of Political Theory,” Journal of the History of Ideas 39 (01–03 1978): 101–18.CrossRefGoogle Scholar

17. Newton, Lisa H., “Reverse Discrimination as Unjustified,” Ethics 83 (07 1973): 310.Google Scholar

18. Singer, Peter, “Is Racial Discrimination Arbitrary?Philosophia 8 (11 1978): 194.CrossRefGoogle Scholar

19. Simon, Robert, “Preferential Hiring: A Reply to Judith Jarvis Thompson,” Philosophy and Public Affairs 3 (Spring 1974): 315.Google Scholar

20. Ibid., p. 313.

21. Fullinwider, Robert K., “Preferential Hiring and Compensation,” Social Theory and Practice 3 (Spring 1975): 309.CrossRefGoogle Scholar

22. Ibid., pp. 319–20.

23. Ibid., p. 316, emphasis in the original.

24. Barry, Brian, “Equal Opportunity and Moral Arbitrariness,” in Equal Opportunity, ed. Bowie, Norman E. (Boulder, CO: Westview, 1988), pp. 2344.Google Scholar

25. Barry, , Theories of Justice, p. 284.Google Scholar

26. See Downey, Gary L., “Ideology and the Clamshell Identity: Organizational Dilemmas in the Anti-Nuclear Power Movement,” Social Problems 33 (06 1986): 357–73;CrossRefGoogle Scholar and Zisk, Betty, The Politics of Transformation: Local Activism in the Peace and Environmental Movements (New York: Praeger, 1992).Google Scholar

27. Barry, , Theories of Justice, p. 284.Google Scholar

28. See Scanlon, Thomas M., “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Sen, Amartya and Williams, Bernard (Cambridge: Cambridge University Press, 1982), pp. 103–28.CrossRefGoogle Scholar

29. Nagel, Thomas, “Equal Treatment and Compensatory Discrimination,” Philosophy and Public Affairs 2 (Summer 1973): 354.Google Scholar

30. Ibid., p. 353.

31. Thompson, Judith Jarvis, “Preferential Hiring,” Philosophy and Public Affairs 2 (Summer 1973): 381–82.Google Scholar

32. Dworkin, Ronald, “The DeFunis Case: The Right to Go to Law School,” New York Review of Books 23 (5 02 1976): 33.Google Scholar

33. Ibid., p. 31, emphasis in the original.

34. Durkheim, Emile, The Elementary Forms of Religious Life: Study in Religious Sociology, trans. Swain, Joseph Ward (New York: Free Press, 1964), pp. 2123.Google Scholar This work was originally published in 1912. Thompson, et al. , Cultural Theory, p. 21.Google Scholar

35. Gert, Bernard, Morality: A New Justification of the Moral Rules (New York: Oxford University Press, 1988).Google Scholar

36. See MacIntyre, Alasdair, A Short History of Ethics (New York: Macmillan, 1966);CrossRefGoogle ScholarAfter Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press, 1984);Google Scholar and Whose Justice? Which Rationality? (Notre Dame, IN: University of Notre Dame Press, 1988).Google Scholar

37. Cultural Theory.

38. See Douglas, Mary, “Cultural Bias,” in In the Active Voice, ed. Douglas, Mary (London: Routledge and Kegan Paul, 1982), particularly pp. 190208;Google Scholar and “Introduction to Grid/Group Analysis,” in Douglas, Mary, ed., Essays in the Sociology of Perception (London: Routledge and Kegan Paul, 1982), pp. 18;Google Scholar as well as Thompson, et al. , Cultural Theory.Google Scholar

39. There is a fifth, nonsocially interactive way of life: the hermit's. See Thompson, Michael, “The Problem of the Centre: An Autonomous Cosmology,” in Douglas, , Essays in the Sociology of Perception, pp. 302–27.Google Scholar

40. See, for instance, Holmes, Stephen, The Anatomy of Antiliberalism (Cambridge, MA: Harvard University Press, 1993).Google Scholar

41. See John Locke, Second Treatise of Government, on the natural environment; and Nozick, Anarchy, State, and Utopia, on the social environment.

42. Barry, , Theories of Justice, p. 284.Google Scholar

43. See, for instance, Rousseau, Jean-Jacques, Second Discourse.Google Scholar

44. In order to successfully project their ways of life onto large-scale societies both individualists and egalitarians have to compromise and form coalitions with hierarchists, e.g., limited, representative government and social democracy, respectively.

45. See, for instance, Burke, Edmund, Reflections on the Revolution in France.Google Scholar

46. Plato's discussion of justice in The Republic is similar in many respects to this hierarchical view. But Plato's insistence on defining practical reason substantively (in terms of specific ends) makes him difficult for Cultural Theory to “map.” See Onora O'Neill, “Theories of Justice, Traditions of Virtue” (Paper presented at Constructions of Reason: A Conference on the Work of O'Neill, Onora and “Explanations of Kant's Practical Philosophy,” University of Notre Dame, 27–28 09 1991).Google Scholar

47. Young, Michael, The Rise of Meritocracy (Harmondsworth, UK: Penguin, 1959).Google Scholar

48. See Turnbull, Colin, The Mountain People (New York: Simon and Schuster, 1972);Google Scholar and particularly Banfield, Edward C., The Moral Basis of a Backward Society (New York: Free Press, 1958).Google Scholar

49. It is not necessary to conclude from this diversity that the general enterprise of moral objectivists is misguided. Moral theorists should, of course, pursue the nature of morality, and they may develop an objectivist core that can garner growing agreement. In the meantime, however, most persons do not acquire their sense of morality from moral theorists but rather from the culture(s) of significant others in their lives. And while the degree to which these socially-embedded views are guided by the work of academic moral theorists varies, it is generally low. Currently, then, metaethics has limited consequences for practices of morality. As part of the former inquiry intellectuals may create conceptions of morality—and consequently of justice—that are different, minimally in their sophistication, from the four general conceptions of Cultural Theory. Consider, for instance, the versions of individualistic “intuitionism” by Nash or Braithwaite that Barry discusses. See Theories of Justice, section 4. But according to Cultural Theory, only variations of four ways of life are socially viable. Cultural Theory does admit to a second-order or metaethical objectivism and thus, while pluralist in the sense of recognizing multiple moral goods not reducible to a common denominator, is not an example of moral relativism at this level. See Lockhart, Charles and Franzwa, Gregg, “Cultural Theory and the Problem of Moral Relativism,” in Politics, Culture, and Policy: Applying Grid-Group Analysis, ed. Coyle, Dennis J. and Ellis, Richard J. (Boulder, CO: Westview, 1994).Google Scholar

50. See Murray, Charles, Losing Ground: American Social Policy, 1950–1980 (New York: Basic, 1984);Google ScholarNozick, , Anarchy, State, and Utopia; and Barry, , “Equal Opportunity and Moral Arbitrariness.”Google Scholar

51. See Huntington, Samuel P., American Politics: The Promise of Disharmony (Cambridge, MA: Harvard University Press, 1981);Google Scholar and Murray, , Losing Ground.Google Scholar

52. See Fishkin's, related discussion in Justice, Equal Opportunity, and the Family, pp. 106107.Google Scholar

53. See Barry, , “Equal Opportunity and Moral Arbitrariness,” pp. 3031.Google Scholar

54. Huntington, , American Politics, p. 14.Google Scholar

55. See Blackstone, William T., “Reverse Discrimination and Compensatory Justice,” Social Theory and Practice 3 (Spring 1975): 253–88;CrossRefGoogle Scholar and Fishkin, , Justice, Equal Opportunity, and the Family.Google Scholar

56. Fishkin's overall point is that a “trilemma” exists between these two elements of equality of opportunity and those aspects of negative liberty involving parental choices with respect to child rearing (family autonomy). By trilemma Fishkin means that we can realize any two of these values but not all three simultaneously. So, for instance, realizing procedural and background fairness would come at the expense of family autonomy. A similar view is found in Rawls, , A Theory of Justice, p. 74.Google Scholar

57. Ibid., p. 72.

58. See Jencks, Christopher et al. , Inequality: A Reassessment of the Effects of Family and Schooling in America (New York: Basic, 1972), p. 73.Google Scholar

59. See Young, , Rise of Meritocracy.Google Scholar

60. See Mill, John Stuart, On Liberty (New York: E. P. Dutton, 1951).Google Scholar This work was originally published in 1859. See also Sidgwick, Henry, The Methods of Ethics, 7th ed. (London: Macmillan, 1967). This work was originally published in 1907.Google Scholar

61. Thompson, Michael, “Policy Making in the Face of Uncertainty” (unpublished manuscript, London, no date).Google Scholar

62. What's Fair?

63. Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic, 1983).Google Scholar