Abstract
In his multi-faceted attack on Rawls’s account of justice, G.A. Cohen has argued that the notion of basic structure is necessarily insensitive to the importance of informal social norms to social justice. The paper argues that the most plausible account of the basic structure is not blind to informal social norms in any meaningful sense. Whereas informal, non-legally coercive institutions are not part of the basic structure as such, their careful consideration is necessary for the assessment of whether the basic structure itself is indeed just. This claim is based on an account of what it means for normative principle to apply to institutions, which I expound in detail throughout the paper. Principles apply to institutions, I argue, not in that they restrain their conduct, but in that they indicate which social conditions they should bring about.
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Notes
By ‘major institutions’, Rawls means ‘the political constitution and the principal economic and social arrangements’ (Rawls 1999a, p. 6).
‘The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances. These two kinds of principles apply to different subjects and must be discussed separately’, (Rawls 1999a, p. 47). In ‘The Basic Structure as Subject’ Rawls also criticizes utilitarianism and libertarianism for failing to recognize that ‘special first principles’ are required for the basic structure (Rawls 1993, p. 262).
It seems that what Rawls has in mind are, more generally, patterned principles, of which distributive principles are a subcategory. Patterned principles are, in Nozick’s jargon, principles that aim to preserve a significant pattern or relationship between members of society (Nozick 1974, pp. 155–160). Rawls’s rationale for considering such principles special principles that apply to the basic structure only is never spelled out in a comprehensive way, but it is plausible to hold that it is a combination of two premises: the premise that patterned principles (and distributive principles in particular) are epistemically over-demanding as principles of individual conduct (it is not clear what it means for an individual to follow it and whether and individual could follow them even if she wanted to); and the premise that they are morally over-demanding, at least for a liberal theory which holds that individuals should be free to pursue their own goals in life. For Rawls’s remarks on these two points, see Rawls (1993, pp. 265–269).
Namely, the two, lexically ranked principles commanding respectively that ‘each person is to have an equal right to the most extensive total system of equal basic liberties’, and that social and economic inequalities should be arranged so that they benefit the least advantaged and they are attached to positions open to all according to a system of fair equality of opportunity (Rawls 1999a, p. 266).
First and foremost, individuals must honour the ‘natural duty of justice’, namely the duty to ‘support and comply with just institutions that exist and apply to us [and] to further just arrangements not yet established, at least when this can be done without too much cost to ourselves’ (Rawls 1999a, p. 99). Other natural duties also apply to individuals in Rawls’s account, such as the duty of mutual respect, (Rawls 1999a, p. 94).
I am very grateful to an anonymous reviewer for suggesting this formulation of the main thrust of my argument.
A very brief sketch of what such a case would look like might give an idea of why it would require tackling wider and more general philosophical concerns, which would therefore lead us too far here. First of all, one needs to ask whether principles of justice are to be interpreted as aspirations and pro tanto commands, or rather as truly action-guiding prescriptions. If the latter is the case, then probably distributive principles cannot apply to individual conduct, since they cannot guide action in a reasonably clear way (given the complexities of social life, we can never be reasonably confident that our actions to preserve a certain distributive pattern will actually even go in the right direction). But this depends on general ethical and meta-ethical premises about what it means for a principle to apply to a sphere of action, and whether a normative principle needs to be action-guiding. Secondly, even if the first problem did not hold, whether distributive principles apply to individual conduct depends on whether social justice is a constraint or a social goal, and on whether people’s entitlement to pursue their personal goals in life is an integral part of justice, or a value that conflicts with it. If justice is a constraint, and if people’s entitlement to pursue their goals is an integral part of justice, then a case could be made that making distributive principles apply to individual conduct would make a conception of social justice over-demanding and possibly internally incoherent. Settling this dispute, however, would require a complex and lengthy discussion on the nature of justice as such.
Cohen additionally specifies: ‘In speaking of the choices that people make within coercive structures, I do not include the choice whether or not to comply with the rules of such structures (to which choice, once again, so every one would agree, principles of justice [also] apply), but the choices left open by those rules because neither enjoined nor forbidden by them’ (Cohen 1997, p. 3; emphasis in original).
Of course, the effectiveness and the functioning of such structures do rely on people’s daily choices, i.e. on people’s choices to comply or not comply with them.
I am grateful to an anonymous reviewer for a helpful suggestion on how to spell out the difference between models X and Y.
One might object that my example is highly unrealistic. Consider, however, the case of Iran, where women actually do tend to be considerably educated on average. Consider also the nineteenth century bourgeois family model, where the good wife and good mother is expected to have a good education in order to supervise the intellectual development of her children and be a brilliant host for her guest.
See also Pogge: ‘Rawls’s criterion of justice assesses a basic structure by the distribution it would tend to produce in the actual social system it organizes’ (Pogge 2000, p. 165).
A similar comparison is offered by Pogge in his response to Cohen. Cohen reports that ‘in 1988, the ratio of top executive salaries to production worker wages was 6.5:1 in West Germany and 17.5:1 in the United States. Since it is not plausible to think that Germany’s lesser inequality was an incentive to lesser productivity, since it is plausible to think that an ethos that was relatively friendly to equality protected German productivity in the face of relatively modest material incentives, we can conclude that the said ethos caused the worst off to be better paid then they would have been under a different culture of reward’ (Cohen 1997, p. 27). In reply to this example, Pogge notes that U.S. law gives ‘very favourable treatment to stock options and also allows these to be kept off corporate balance sheets, where they might provoke greater scrutiny and opposition from shareholders’ (Pogge 2000, p. 139). And if this is the case, Pogge argues, the difference between Germany and the U.S.A. was, indeed, institutional in kind.
This example is not meant to be a reply to Cohen’s challenge to the difference principle and the selfish incentives it allows (Cohen 1997). I do not mean to suggest that Cohen would consider society Z just irrespectively of whether its citizens and residents do or do not apply principles of social justice to their own conduct. As I mentioned in the introduction, my aim in this paper is not to provide a full-blown defence of the focus of the basic structure, but to clarify a misunderstanding regarding what makes a basic structure just.
Also relevant in this respect is Pogge’s distinction between interactional and institutional approaches in political philosophy, Pogge (1995).
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Acknowledgements
I am grateful to Avia Pasternak, Christian Schemmel, Adam Swift, audiences at the Oxford Graduate Political Theory Research Workshop and at the Nuffield Political Theory Research Workshop, and two anonymous reviewers for extremely helpful comments on earlier drafts of this paper. A shorter, similar argument to that presented in section "How do Principles Apply to Institutions?" of this article is offered in Ronzoni (2007, pp. 71–76) in relation to global distributive justice.
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Ronzoni, M. What Makes a Basic Structure Just?. Res Publica 14, 203–218 (2008). https://doi.org/10.1007/s11158-008-9056-0
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DOI: https://doi.org/10.1007/s11158-008-9056-0