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THE LIMITS OF BACKGROUND JUSTICE*

Published online by Cambridge University Press:  12 February 2014

Thomas Porter Sinclair
Thomas Porter Sinclair*
Affiliation:
Philosophy, Wadham College, Oxford
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Abstract

The argument from background justice is that conformity to Lockean principles of justice in agreements and transactions does not preclude the development of inequalities that undermine the freedom and fairness of those very transactions, and that, therefore, special principles are needed to regulate society's “basic structure.” Rawls offers this argument as his “first kind of reason” for taking the basic structure to be the primary subject of justice. Here I explore the background justice argument and its implications for questions about the scope of distributive justice. As it turns out, the background justice argument can offer no independent support for conclusions about the scope of distributive justice. For the special principles that it justifies inherit their scope from conclusions that must be established or assumed in advance. These prior conclusions are precisely what is at issue in debates about global justice.

Type
Research Article
Information
Social Philosophy and Policy , Volume 30 , Issue 1-2 , January 2013 , pp. 352 - 372
Copyright
Copyright © Social Philosophy and Policy Foundation 2013 

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Footnotes

*

A previous version of this essay was presented at a workshop at the Central European University in Budapest, July 2012. Many thanks to those present for their very helpful questions and suggestions. For detailed comments, I am also particularly grateful to Andrew Lister, Jonathan Quong, Miriam Ronzoni, Andrew Williams, and two anonymous referees.

References

1 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), 257Google Scholar.

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

3 Rawls, John, Justice as Fairness: A Restatement, ed. Kelly, Erin (Cambridge, MA: Harvard University Press, 2001), 55Google Scholar.

4 For discussion of this idea, see Abizadeh, Arash, “Cooperation, Pervasive Impact, and Coercion,” Philosophy and Public Affairs, 35 (2007): 341–45CrossRefGoogle Scholar.

5 See Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999)Google Scholar.

6 See ibid.; and Ronzoni, Miriam, “The Global Order: A Case of Background Injustice? A Practice-Dependent Account,” Philosophy and Public Affairs 37, no. 3 (2009)CrossRefGoogle Scholar.

7 Since my interest here is in anatomizing the background justice argument and its implications, rather than in scholarly exegesis, I will make no serious effort to defend any one interpretation as the correct interpretation of Rawls. Still, I hope that my discussion will prove useful to anyone interested in that project.

8 Rawls, Political Liberalism, 258. Compare Rawls, Justice as Fairness, 10.

9 Rawls, , A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 47–48Google Scholar.

10 Rawls, Justice as Fairness, 10. It is worth noting that even a minimal Lockean state will have a basic structure.

11 Rawls, Political Liberalism, 257–58.

12 Rawls, A Theory of Justice, 3.

13 There are several different possible versions of priority in conflict, which vary at least according to whether satisfaction of the prioritized principles typically or invariably has priority over satisfaction of other principles, whether it has indefeasible or only prima facie priority, and whether satisfying the deprioritized principles has any value at all in a conflict. I disregard these complications here.

14 The priority claim is not all that Rawls has in mind when he says that the basic structure is the primary subject of justice. He also means, I believe, to assert what we can call the “focus claim,” namely, that the basic structure is that for which an important type of principle of justice, meriting theoretical consideration before other types of principle, should be designed to constitute standards of assessment (see his comments on “unity by appropriate sequence” at Political Liberalism, 259–62). The focus claim would be a natural correlate of priority in content, but not so much of priority in conflict.

15 Rawls, Justice as Fairness, 53–54.

16 Ibid., 52.

17 Ibid., 52–53.

18 Ibid., 53.

19 Ibid.

20 Rawls, Political Liberalism, 267.

21 Ibid., 266.

22 Ibid., 267–68.

23 Compare Scheffler, Samuel, “Egalitarian Liberalism as Moral Pluralism,” Proceedings of the Aristotelian Society Supplementary Volume 79 (2005)CrossRefGoogle Scholar.

24 Ibid.

25 On the one hand, Rawls might be arguing from the point of view of a commitment to values of freedom and fairness in transactions that we can attribute to the Lockean, which suggests an internal critique. On the other hand, the point might be that Lockean freedom and fairness in transactions are not by themselves genuine freedom and fairness in transactions, which suggests an external critique. My experience of presenting people with these two ways of interpreting Rawls's discussion indicates no decisive majority in favor of one or the other. (My own view is that Rawls intends an external critique.) However that may be, it seems to me that both critiques of Lockean views might coherently be proposed in terms at least very similar to those employed by Rawls. And, since the key conclusion of both critiques is that conformity to the requirements of foreground principles (fully) realizes transactional freedom and fairness only when there is a just background in place, so that special, prioritized regulation of the basic structure is also necessary, both may be regarded as background justice arguments.

26 See e.g., Nozick, Anarchy, State, and Utopia, 262–64. Nozick suggests that one's entering into a transaction is nonvoluntary—and therefore commutative justice-undermining—only if those whose actions place limits on one's alternatives did not have the right to act as they did.

27 Compare Cohen, G. A., Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995), 59–61CrossRefGoogle Scholar.

28 The only thing that Rawls says (Justice as Fairness, 53) about Lockean provisos is that they are insufficiently stringent. He does not consider the possibility of an “egalitarian proviso.”

29 See Nozick, Anarchy, State, and Utopia, 175–78.

30 See e.g., Otsuka, Michael, Libertarianism without Inequality (Oxford: Oxford University Press, 2003)CrossRefGoogle Scholar; Steiner, Hillel, An Essay on Rights (Oxford: Blackwell, 1994)Google Scholar; Vallentyne, Peter, “Left-Libertarianism: A Primer,” in Left Libertarianism and its Critics: The Contemporary Debate, ed. Steiner, Hillel and Vallentyne, Peter (Basingstoke: Palgrave, 2000)Google Scholar.

31 See Nozick, Anarchy, State, and Utopia, 179–82.

32 One possibility is that tragedies of the commons would depress material well-being even if no one violated Lockean foreground principles. See Schmidtz, David, “Taking Responsibility.” in Schmidtz, David and Goodin, Robert E., Individual Responsibility: For and Against (Cambridge: Cambridge University Press, 1998.)CrossRefGoogle Scholar

33 In nonideal theory, the waters are muddied even further by the many injustices in initial acquisition and subsequent interactions that we can confidently suppose to have taken place—injustices whose rectification may also call for background principles for reasons similar to those that feature in the background justice argument. (Compare Nozick's suggestion that the difference principle might serve as a rule of thumb for the rectification of historical injustices at Anarchy, State, and Utopia, 231.)

34 See e.g., Michael Otsuka's description of the egalitarian proviso at Libertarianism without Inequality, 24–25.

35 What version of the priority claim would a successful internal critique support? The basic idea of the background justice argument, recall, is that background principles make possible the important values expressed by free and fair agreements reached by individuals and associations. How would proviso-dictated background principles do this? The idea must be that unless the relevant proviso's requirements are satisfied, the value of satisfying those of the foreground principles is not fully realized. Since proviso-governed acquisitions of initially unowned resources predate transactions involving those resources, it is plausible enough, within a Lockean ideal historical process framework, to take this view. (I disregard complications arising from the possibility of transactions involving resources that are not initially unowned, such as a person's hair [see Otsuka, Libertarianism without Inequality, 18–19].) For that framework makes the justice of holdings at a given time subordinate to the justice of prior transactions and acquisitions, in the sense that one cannot justly own something that rectification of a prior injustice would assign to someone else. (To illustrate: an exchange of stolen goods that conforms in itself to Lockean foreground principles governing exchanges at best realizes only a kind of imitation justice in transactions.) But the interpretation of the priority claim that this seems best to support is priority in conflict rather than priority in content: Lockean foreground principles and proviso-dictated background principles are not obviously expressive of the very same values. (For skepticism about the coherence of proviso-dictating values and self-ownership rights-dictating values in left libertarianism, see Risse, Matthias, “Does left-libertarianism have coherent foundations?” Politics, Philosophy, and Economics 3, no. 3 [2004]CrossRefGoogle Scholar.) It is true that the values that foreground principles are meant to express, on this picture, are not (or not fully) expressed except insofar as the values expressed by the proviso-dictated background principles are realized. But this is not because the background principles are conceptually prior to the foreground principles. It is simply because of the timing of their demands.

36 Compare Ronzoni, “The Global Order,” 239.

37 See Steiner, An Essay on Rights, 178–87.

38 Compare Otsuka's description of what he calls “robust self-ownership” at Libertarianism without Inequality, 32.

39 Note that it might be that the proposed case for sufficientarian background principles is overdetermined, because both freedom and fairness in transactions independently call for them.

40 Some appeals to such ideals may not support a background justice argument, properly so called, for reasons explained in Section II above. For the idea that inequality is intrinsically bad because it is unfair, see Temkin, Larry, “Inequality: A Complex, Individualistic, and Comparative Notion,” Philosophical Issues 11 (2001)CrossRefGoogle Scholar.

41 Which version of the priority claim will the external critique explain if it is successful? The idea is that foreground principles expressing Lockean ideals are inadequately expressive by themselves of genuine freedom and fairness in transactions, despite the appearance of freedom and fairness that conformity to them may generate. But that is not because of the historical priority of background principles (as with the left- and soft libertarian arguments). To my mind, this points in the direction of priority in content. Setting aside notions of historical priority, why would conformity to background principles facilitate conformity to foreground principles' expression of genuine freedom and fairness if not because the values expressed by each type of principle were conceptually connected? And, in that case, why view the priority of one type of principle as priority in conflict, which suggests that the value expressed by the defeated principle loses out to that expressed by the victor?

42 See e.g., Cohen, Joshua and Sabel, Charles, “Extra Rempublicam Nulla Justitia?” Philosophy and Public Affairs 34, no. 2 (2006)CrossRefGoogle Scholar.

43 Assuming that the social ideal is not in tension with the values expressed by the Lockean foreground principles, in which case it cannot provide the basis of a background justice argument at all. (See Section II above.)

44 See Abizadeh, “Cooperation, Pervasive Impact, and Coercion,” 333–34.

45 See Ronzoni, “The Global Order,” especially 244, 254–55.

46 This is not a criticism of Rawls. The background justice argument is not intended by him to justify any conclusions about the scope of background principles.