Restricting Justice: Political Interventions in the Home and in the Market

Abstract

Liberal theorists of justice like John Rawls have long maintained that a theory of justice should apply primarily to the institutional mechanisms of society, and only derivatively to the behavior of individuals within institutions. Institutions of taxation, for example, may be just or unjust by the lights of a theory of justice, but such a theory should deem the behavior of individuals unjust only insofar as that behavior undermines just institutions. As Rawls puts it, “we are to comply with and to do our share in just institutions when they exist and apply to us, [and] we are to assist in the establishment of just arrangements when they do not exist.”11 Rawls, John, A Theory of Justice, rev. ed. ( Cambridge, Mass.: Harvard University Press, 1999), pp. 293– 294. See also ibid., pp. 99, 154, 415. Consider Rawls's difference principle, which maintains that institutions are to be arranged in such a way as to optimize the position of the least advantaged. Among the various possible ways of arranging society's institutions, the difference principle approves that arrangement within which the worst off are better off than under any other feasible arrangement. But the difference principle does not dictate that within society's institutions, individuals must behave in ways that benefit the least advantaged. On the contrary, individuals are required only to support and comply with institutions approved by the difference principle, and to work toward the formation of such just institutions insofar as they do not yet exist. Critics of this restricted conception of justice (hereafter RCJ) argue that a theory of justice should judge individual behavior directly, even when that behavior complies with just institutions. These critics have tended to focus on two kinds of behavior that they argue should fall within the subject matter of a theory of justice: the “market-maximizing” behavior of economic agents who demand incentives to exercise marketable talents in socially beneficial ways,22 Cohen, G. A., “ Incentives, Inequality, and Community,” in The Tanner Lectures on Human Values, vol. 13, ed. G. Peterson ( Salt Lake City: University of Utah Press, 1992), pp. 261– 329; Cohen, , “ The Pareto Argument for Inequality,” Social Philosophy and Policy 12 (1995): 160– 185; Cohen, , “ Where the Action Is: On the Site of Distributive Justice,” Philosophy & Public Affairs 26 (1997): 3– 30; Cohen, , “ If You're an Egalitarian, How Come You're So Rich?” Journal of Ethics 4 (2000): 1– 26; Murphy, Liam B., “ Institutions and the Demands of Justice,” Philosophy & Public Affairs 27 (1998): 251– 291. and the “housework-shirking” behavior of family members who distribute power and labor unequally according to gender.33 Lloyd, S. A., “ Family Justice and Social Justice,” Pacific Philosophical Quarterly 75 (1994): 353– 371; Neufeld, Blain, “ Coercion, the Basic Structure, and the Family,” Journal of Social Philosophy 40 (2009): 37– 54; Nussbaum, Martha, “ The Feminist Critique of Liberalism,” in Sex and Social Justice ( New York: Oxford University Press, 1999), chap. 2, pp. 55– 80; Nussbaum, , “ Rawls and Feminism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman ( Cambridge: Cambridge University Press, 2000); Okin, S. M., Justice, Gender, and the Family ( New York: Perseus Books, 1989); Okin, , “ Political Liberalism, Justice, and Gender,” Ethics 105 (1994): 23– 43; Okin, , “ Forty Acres and a Mule for Women: Rawls and Feminism,” Politics, Philosophy & Economics 4 (2005): 233– 248. These critics argue that RCJ implausibly places these behaviors beyond the reach of justice. Call this the “restrictiveness objection” to RCJ. A second objection to RCJ threatens to undermine RCJ from within: this criticism alleges that RCJ is arbitrary, because the theorists who embrace it lack a principled justification for restricting the subject matter of their theories to institutions while exempting the behavior of individuals within those institutions. Call this the “arbitrariness objection” to RCJ.44 The following are representative of those who oppose RCJ: Cohen, , “ Incentives, Inequality, and Community”; Cohen, , “ Where the Action Is”; Cohen, , “ If You're an Egalitarian”; Cohen, , “ The Pareto Argument for Inequality”; Cohen, , Rescuing Justice and Equality ( Cambridge, Mass.: Harvard University Press, 2008); and Murphy, , “ Institutions and the Demands of Justice.” Michael Titelbaum concurs with Cohen that constraints on individual behavior are “required on Rawls's own terms,” although he disagrees with Cohen on the content of those constraints. Titelbaum, , “ What Would a Rawlsian Ethos of Justice Look Like?” Philosophy & Public Affairs 36 (2008): 289– 322, at p. 295. In this article, I focus primarily on Cohen's formulation of the two objections. Various defenses of RCJ have been attempted. See Williams, Andrew, “ Incentives, Inequality, and Publicity,” Philosophy & Public Affairs 27 (1998): 225– 247; Wolff, Jonathan, “ Fairness, Respect, and the Egalitarian Ethos,” Philosophy & Public Affairs 27 (1998): 97– 122; Estlund, David, “ Liberalism, Equality, and Fraternity in Cohen's Critique of Rawls,” Journal of Political Philosophy 6 (1998): 99– 112; Pogge, Thomas, “ On the Site of Distributive Justice: Reflections on Cohen and Murphy,” Philosophy & Public Affairs 29 (2000): 137– 169; Cohen, Joshua, “ Taking People as They Are?” Philosophy & Public Affairs 30 (2001): 363– 386; Daniels, Norman, “ Democratic Equality: Rawls's Complex Egalitarianism,” in Freeman, The Cambridge Companion to Rawls; Tan, Kok-Chor, “ Justice and Personal Pursuits,” Journal of Philosophy 101 (2004): 331– 362; Scheffler, Samuel, “ Is the Basic Structure Basic?” in The Egalitarian Conscience: Essays in Honour of G. A. Cohen, ed. Christine Sypnowich ( Oxford: Oxford University Press, 2006); and Neufeld, , “ Coercion, the Basic Structure, and the Family.” I address Scheffler's and Neufeld's defenses directly later in this article. For Cohen's reply to Williams, see Cohen, , Rescuing Justice and Equality, pp. 344– 371. For his reply to Pogge, see ibid., pp. 394– 403. My project in this article is to defend RCJ against both objections. Along the way, I consider and reject an alternative strategy for defending RCJ, but I use insights gleaned from the inadequacies of this rival strategy to build my own defense against the two objections: working from within the framework of political liberalism, I demonstrate first that a theory of justice can nonarbitrarily be restricted to the basic structure, or the institutional structure by which “the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation,”55 Rawls, , A Theory of Justice, p. 6. I use Rawls's term “basic structure” because I endorse the restriction of justice to the institutional mechanisms by which major social institutions exercise power over citizens; but, depending on one's interpretation of Rawls's usage, he and I may diverge regarding the extension of that term. This will become clearer in due course. and second that such a restriction does not result in an implausibly narrow subject matter of justice. I conclude that neither objection undermines RCJ. I do not defend RCJ as it has typically been understood, however. A crucial premise in my argument is that the delineation of the basic structure is itself a substantive normative task, the performance of which must be responsive to relevant differences among enactments of political power. I argue for a more expansive notion of legitimate political power than either critics or defenders of RCJ have tended to adopt.66 Other theorists have argued that the basic structure extends further than is typically thought. See Estlund, , “ Liberalism, Equality, and Fraternity”; Cohen, , “ Taking People as They Are?”; Scheffler, , “ Is the Basic Structure Basic?”; and Tan, , “ Justice and Personal Pursuits.” Cohen at times seems open to this defense of RCJ. Cohen, , Rescuing Justice and Equality, p. 12. Elsewhere, he appears to reject this approach. Ibid., p. 126 n20. My article is distinctive in offering a systematic investigation into RCJ's capacity to countenance political projects aimed at changing the behavior of individuals by modifying institutions. I consider projects to change market-maximizing behavior and housework-shirking behavior, and investigate the constraints within which such projects constitute legitimate exercises of political power. My defense of RCJ thus occupies a conceptual middle ground within the debate about the subject matter of justice: With defenders of RCJ, I maintain that a theory of justice applies directly only to the basic structure of society, such that a society with just institutions may be fully just even though housework-shirking and market-maximizing occur within it. But I agree with critics of RCJ that market-maximizing and housework-shirking should not be beyond the reach of a theory of justice. I reconcile these convictions by defending a view of political legitimacy according to which housework-shirking and market-maximizing can be targets of legitimate political interventions. While a society is not made less just by the mere occurrence of housework-shirking and market-maximizing, it can be less just for having a basic structure that enables or encourages these behaviors. John Rawls, the best-known defender of RCJ, argues that the basic structure of society is “the primary subject of justice”:77 Rawls, , A Theory of Justice, p. 6. principles of justice “must not be confused with the principles which apply to individuals and their actions in particular circumstances” since “the two kinds of principles apply to different subjects and must be discussed separately.”88 Ibid., p. 47. It is not altogether clear what Rawls intends the basic structure to include. Generally, he includes just those institutions that are part of the system through which the state coercively limits the freedom of individuals.99 For textual support of this interpretation, see Rawls, , Political Liberalism ( New York: Columbia University Press, 1993), pp. 282– 283. But when discussing his rationale for the basic structure restriction, he commits himself to what some have argued is a more expansive notion of the basic structure, which includes any major social institution that profoundly influences citizens' life prospects. Rawls claims, for example, that the “basic structure is the primary subject of justice because its effects are so profound and present from the start.”1010 Rawls, , A Theory of Justice, p. 7, italics added. This is just one of Rawls's reasons for restricting the purview of justice. For a discussion of the others, see Scheffler, , “ Is the Basic Structure Basic?” For his part, Cohen appears to ignore Rawls's other justifications for RCJ: “Given … his stated rationale for exclusive focus on the basic structure—and what other rationale could there be for calling it the primary subject of justice?—Rawls is in a dilemma.” Cohen, , Rescuing Justice and Equality, p. 137. (Cohen is here referring to the profundity of effect rationale offered in the quotation to which this note is attached.) According to G. A. Cohen, RCJ is in tension with Rawls's stated justification for it:1111 Cohen, , “ Where the Action Is,” pp. 18– 19. Okin also makes this point. See Okin, , “ Review of Political Liberalism,” American Political Science Review 87 (1993): 1010– 1011. For a slightly different rendering of the arbitrariness objection, see Murphy, “Institutions and the Demands of Justice.” For a response more specifically directed at Murphy, see Pogge, Thomas, “ On the Site of Distributive Justice: Reflections on Cohen and Murphy,” Philosophy & Public Affairs 29 (2000): 137– 169. if “profundity of impact” qualifies an institution for inclusion in the basic structure, then the basic structure should include all social mechanisms that exert a profound impact on the life prospects of citizens. As Cohen points out, noninstitutional mechanisms can exert just as profound an impact on citizens as political institutions. But because these noninstitutional mechanisms are partly constituted by individual behaviors that cumulatively shape social norms, they are excluded from the subject matter of justice on RCJ.1212 In Cohen's own words, “Why should we care so disproportionately about the coercive basic structure, when the major reason for caring about it … is also a reason for caring about informal structure and patterns of personal choice? To the extent that we care about coercive structure because it is fateful with regard to benefits and burdens, we must care equally about the ethos that sustains gender inequality and inegalitarian incentives.” Cohen, , Rescuing Justice and Equality, p. 138. See also Cohen, , “ Where the Action Is,” pp. 21– 22. Baynes and Williams also endorse the arbitrariness objection to RCJ. See Baynes, Kenneth, “ Ethos and Institutions: On the Site of Distributive Justice,” Journal of Social Philosophy 37 (2006): 182– 196; and Williams, , “ Incentives, Inequality, and Publicity.” As an illustration, consider the informal social norms that sustain the heterosexual family as the dominant model for domestic life. Norms valorizing heterosexuality profoundly influence citizens by shaping their beliefs, the values they come to affirm, and the people they aspire to be. These norms operate through the choices and behaviors of individual citizens, but they can be just as profound in their impact as more formal political institutions. RCJ must be rejected, according to Cohen, because it restricts the purview of justice in a way that is arbitrary, given Rawls's stated rationale for it.1313 Notice, however, that one could defend RCJ against the arbitrariness objection without accepting Rawls's stated justification for that restriction. RCJ is arbitrary only if no principled justification can be given for it. I will argue in due course that some principled justification can be given. Because a principled justification is available, the failure of Rawls's proposed justification—if indeed it does fail—need not concern defenders of RCJ. While the arbitrariness objection maintains that RCJ lacks a principled justification, the restrictiveness objection alleges that RCJ is implausible for its exclusion of individual behavior from the primary purview of justice. Proponents of this objection have focused on two kinds of behavior that they claim should be part of the subject matter of justice: the behavior of “market-maximizers” who demand material incentives to exercise their talents in socially beneficial ways, and the behavior of “housework-shirkers” who allocate work and power unequally according to gender. First consider the market-maximizers. According to Cohen, a restricted theory of justice does not judge the behavior of individuals within the basic structure. Rather, a distribution of income and wealth is just so long as distributive institutions comply with principles of justice. And a just distribution remains just irrespective of the (legally permissible) behavior of individuals within those institutions. But because political institutions are blunt instruments, just institutions leave considerable space for individuals to (legally) influence the distribution of income and wealth. Assume egalitarian principles of justice. Working within just (egalitarian) institutions, talented marketeers can demand incentives that enhance their earnings, thereby disrupting equality.1414 In this context, “talented” is stipulated to mean that these individuals “are so positioned that [they] … command a high salary and … can vary their productivity according to exactly how high [that salary] is.” Cohen, , “ Where the Action Is,” pp. 6– 7. If justice judges only institutions, then a society with just institutions whose talented demand such incentives will be no less just than a more egalitarian society whose talented do not demand the incentives. But this is implausible, according to proponents of the restrictiveness objection. If individuals can help or hinder the goals of justice, then their behavior should not be beyond the reach of principles of justice.1515 On Cohen's account, principles of distributive justice apply not just to the basic structure but also to “people's legally unconstrained choices.” Cohen, , Rescuing Justice and Equality, p. 116. Cohen concedes that there are some “agent-centered prerogatives” to pursue nonegalitarian personal projects. Ibid., p. 10. See also ibid., p. 61. But he evidently thinks this a modest concession: “In my view,” he claims, “there is hardly any serious inequality that satisfies the requirement set by the difference principle.” Ibid., p. 119. David Estlund and Kok-Chor Tan have argued that this seemingly modest concession actually commits Cohen to a much broader array of prerogatives than he wants to allow. Estlund, , “ Liberalism, Equality, and Fraternity”; Tan, , “ Justice and Personal Pursuits.” For Cohen's reply to Estlund, see Cohen, , Rescuing Justice and Equality, pp. 387– 394. Michael Titelbaum argues, with Cohen, that a restricted conception of justice must be supplemented by a set of principles to regulate the behavior of individual agents within institutions, but quarrels over the content of those principles. Titelbaum, , “ What Would a Rawlsian Ethos of Justice Look Like?” p. 296. Now consider the housework-shirkers. According to Cohen, RCJ renders justice blind to norms that reinforce unequal sharing of paid and unpaid work and power among male and female domestic partners. Because those norms are constituted and perpetuated by the behavior of individuals within families, and because RCJ allegedly locates those behaviors beyond the legitimate reach of a theory of justice, the norms themselves appear to be beyond the reach of any theory of justice that upholds RCJ. The disadvantageous effects of strong gender norms are well documented, as are the disadvantageous effects of particular enactments of them in particular families.1616 See, for example, Poeschl, G., “ Social Norms and the Feeling of Justice about Unequal Family Practices,” Social Justice Research 21 (2008): 69– 85; Lothaller, H., Mikula, G., and Schoebi, D., “ What Contributes to the (Im)balanced Division of Family Work between the Sexes?” Swiss Journal of Psychology 68 (2009): 143– 152; Gittell, R., “ Constrained Choices and Persistent Gender Inequity: The Economic Status of Working Women in a High-Income, Low-Poverty State with Lessons for Others,” American Behavioral Scientist 53 (2009): 170– 192; Ross-Smith, A. and Chesterman, C., “ ‘Girl Disease’: Women Managers' Reticence and Ambivalence towards Organizational Advancement,” Journal of Management & Organization 15 (2009): 582– 595; Breen, R. and Cooke, L. P., “ The Persistence of the Gendered Division of Domestic Labour,” European Sociological Review 21 (2005): 43– 57; Kluwer, E., Heesink, J., and Vliert, E., “ Marital Conflict about the Division of Household Labor and Paid Work,” Journal of Marriage & Family 58 (1996): 958– 969; Kluwer, E., Heesink, J., and Vliert, E., “ The Division of Labor in Close Relationships: An Asymmetrical Conflict Issue,” Personal Relationships 7 (2000): 263– 282; and Kluwer, E., “ Responses to Gender Inequality in the Division of Family Work: The Status Quo Effect,” Social Justice Research 11 (1998): 337– 357. According to critics, RCJ is implausible because it renders principles of justice insufficiently attentive to these disadvantages.1717 Proponents of RCJ allow some behavior of family members to count as a legitimate target of political intervention. In explicating his most considered position on the matter, Rawls clarifies that the behavior of individuals within families does fall within the purview of justice insofar as that behavior constitutes a violation of the rights of another family member: “Political principles … do impose essential constraints on the family as an institution and so guarantee the basic rights and liberties, and the freedom and opportunities, of all its members. This they do … by specifying the basic rights of equal citizens who are the members of families. The family as part of the basic structure cannot violate these freedoms. Since wives are equally citizens with their husbands, they have all the same basic rights, liberties, and opportunities as their husbands; and this, together with the correct application of the other principles of justice, suffices to secure their equality and independence.” Rawls, John, “ The Idea of Public Reason Revisited,” in Collected Papers, ed. Samuel Freeman ( Cambridge, Mass.: Harvard University Press, 1999), pp. 573– 615, at p. 597. But critics of RCJ remain unsatisfied. None of the basic liberties demands equal access to social goods within domestic partnerships, and so (non-rights-violating) cases of housework-shirking remain unchallenged by Rawls's treatment of the family. The exclusion of housework-shirking from the subject matter of justice is implausible, these critics say, given the profound disadvantages caused by the norms sustaining the gendered division of labor. Of course, whether RCJ in fact excludes these behaviors from the reach of justice depends on what is included within the basic structure. Enactments of political power can take many different forms. The state exercises political power when it physically forces a citizen to adopt a preferred course of action, but it also exercises political power in obstructing alternative courses of action that would otherwise be available. More gently still, the state exercises political power by reducing the costs of a preferred course of action or raising the costs of nonpreferred courses, by manipulating the incentives that attach to various options in order to change the context against which citizens make choices. By charging deposits on glass bottles, the state raises the cost of throwing them out. By offering benefits like tax incentives to married couples, the state encourages the formation of stable, legally recognized partnerships. Similarly, the state could exercise political power to discourage market-maximizing and housework-shirking. It could impose an educational curriculum that instills an egalitarian ethos,1818 For Cohen's first use of the term “ethos” to refer to a “culture of justice,” see Cohen, , “ Incentives, Inequality, and Community,” p. 315. or provide high-quality subsidized child care to encourage a more equal sharing of domestic labor between genders.1919 Other gender egalitarian political interventions include pay equity and affirmative hiring practices, and incentives for employers that offer paid parental leave (with mechanisms in place to encourage men to take that leave). These interventions may turn out to be illegitimate, but this is a substantive philosophical question. In rejecting RCJ, Cohen treats the delineation of the basic structure as if it were settled pretheoretically. But the extension of the basic structure is a normative matter, and RCJ restricts justice to what it rightfully includes. As such, an assessment of RCJ must await an account of legitimate enactments of political power. Only with such an account in hand can we determine the reach of justice as determined by RCJ, and only then can we determine whether that reach is sufficiently expansive. One of Cohen's own examples illuminates this point: Cohen asks us to imagine a sick child who desperately needs medical treatment. Because of their religious beliefs, the child's parents prefer that she not be treated. Cohen argues as follows: because the behavior of the parents clearly has a profound impact on the child, the case shows that RCJ excludes from the purview of justice some aspects of society that profoundly impact citizens' lives. But notice that this case makes Cohen's point only if the parents' behavior really falls beyond the reach of legitimate exercises of political power. We can imagine societies that recognize a legally enforceable right of children to life-sustaining medical care, regardless of the wishes of the parents. To determine whether the parents' behavior falls within the reach of justice on RCJ, then, we must ask: is it legitimate for the state to exercise power to induce the parents to accept treatment on behalf of their child? If so, then political institutions can be designed to provide that inducement, and an adequate theory of justice will judge society unjust insofar as its institutions fail to do so. Depending on the extent of legitimate political power, RCJ need not render justice blind to the behavior of individuals within society's institutions.2020 In an argument against incentive inequalities, Cohen seems to acknowledge this possibility of arranging social institutions to change personal behavior within labor markets: “Habits can change,” he says, and, continuing in a footnote, “if not always at the level of the individual, then certainly at the social level, through reformed structures of education.” Cohen, , Rescuing Justice and Equality, p. 50. Cohen's assumption that the parents' behavior is excluded from the restricted purview of justice is understandable. These “personal” interactions within families are thought to exemplify the kind of behavior that RCJ implausibly excludes from the reach of justice. Presently, I will defend a much more expansive account of legitimate political power, according to which institutions can legitimately use certain types of political power to target certain behaviors of individuals typically thought to be beyond the reach of justice. I argue, further, that under some circumstances institutions cannot legitimately abstain from doing so. In these circumstances, RCJ will deem social institutions unjust insofar as they fail to intervene to shape individual behavior in the relevant ways. Once we have on hand this account of legitimate political power, we will see that RCJ is neither arbitrary nor implausibly narrow. Before developing my account of legitimate political power, however, I want to consider a rival strategy for defusing the arbitrariness objection. I think the strategy is unsuccessful, but its difficulties are enlightening. Recent attempts to defend RCJ against the arbitrariness objection have alleged that enactments of political power face a “special justificatory burden”:2121 Variations of this strategy are pursued by Neufeld, , “ Coercion, the Basic Structure, and the Family”; and Scheffler, , “ Is the Basic Structure Basic?” Neufeld and Scheffler both refer to RCJ as a restriction of justice to the “coercive” apparatus of society, where coercion is understood broadly to include any exercise of political power. In this they follow Rawls, : “ Political power is always coercive power applied by the state and its apparatus of enforcement.” Rawls, , Justice as Fairness ( Cambridge, Mass.: Harvard University Press, 2001), p. 40; Rawls, , Political Liberalism, p. 68. in liberal societies, exercises of political power are purportedly sanctioned by citizens as a collective body,2222 Rawls, , Political Liberalism, p.