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The Separateness of Persons: Defending the Rawlsian Institutional Approach to Distributive Justice

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  1. For the definition of the site of justice see Tan, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality, 1; Abizadeh, “Cooperation, Pervasive Impact, and Coercion: On the Scope (Not Site) of Distributive Justice,” 323. I get the name “institutional approach” from Tan, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality. For other defenses of the approach, see for example, Kenneth Baynes, “Ethos and Institution: On the Site of Distributive Justice,” Journal of Social Philosophy 37, no. 2 (2006): 182–96; Joshua Cohen, “Taking People as They Are?” Philosophy & Public Affairs 30, no. 4 (2002): 363–86; Norman Daniels, “Democratic Equality: Rawls’s Complex Egalitarianism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2006), 241–76; David Estlund, “Liberalism, Equality, and Fraternity in Cohens Critique of Rawls,” Journal of Political Philosophy 6, no. 1 (1998): 99–112; Samuel Freeman, Rawls (New York: Routledge, 2007); Louis-Philippe Hodgson, “Why the Basic Structure?” Canadian Journal of Philosophy 42, no. 3–4 (2013): 303–34; Aaron James, “Power in Social Organization as the Subject of Justice,” Pacific Philosophical Quarterly 86, no. 1 (2005): 25–49; A. J. Julius, “Basic Structure and the Value of Equality,” Philosophy & Public Affairs 31, no. 4 (2003): 321–55; Kasper Lippert-Rasmussen, “Inequality, Incentives and the Interpersonal Test,” Ratio 21, no. 4 (2008): 421–39; C. M. Melenovsky, “The Basic Structure as a System of Social Practices,” Social Theory and Practice 39, no. 4 (2013): 599–624; Thomas Pogge, “On the Site of Distributive Justice: Reflections on Cohen and Murphy,” Philosophy & Public Affairs 29, no. 2 (2000): 137–69; John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) (TJ); John Rawls, Political Liberalism Expanded Edition (New York: Columbia University Press, 1993) (PL); John Rawls, Justice as Fairness: A Restatement, ed. Erin. Kelly (Cambridge: Harvard University Press, 2001) (JAF); Miriam Ronzoni, “What Makes a Basic Structure Just?” Res Publica: A Journal of Moral, Legal and Social Philosophy 14, no. 3 (2008): 203–18; Samuel Scheffler, “Is the Basic Structure Basic?,” in The Egalitarian Conscience: Essays in Honor of G. A. Cohen, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006), 102–29; Alan Thomas, “Cohen’s Critique of Rawls: A Double Counting Objection,” Mind 120, no. 480 (2011): 1099–1141; Andrew Williams, “Incentives, Inequality, and Publicity,” Philosophy & Public Affairs 27, no. 3 (1998): 225–47; Andrew Williams, “Justice, Incentives and Constructivism,” Ratio 21, no. 4 (2008): 476–93.

  2. Samuel. Fleischacker, A Short History of Distributive Justice (Cambridge: Harvard University Press, 2004), 12; Samuel Scheffler, “Cosmopolitanism, Justice & Institutions,” Daedalus 137, no. 3 (2008): 72. Also see Elizabeth Anderson, “Thomas Paine’s ‘Agrarian Justice’ and the Origins of Social Insurance,” in Ten Neglected Classics of Philosophy, ed. Eric Schliesser (Oxford University Press, 2017).

  3. See also (TJ, 54–55, PL, 261 and 283, JAF, 7, 162–168).

  4. Tan, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality. Rawls PL, 257–85.

  5. For instance, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality, 30.

  6. Brian Berkey, “Against Rawlsian Institutionalism about Justice,” Social Theory and Practice 42, no. 4 (2016): 706–32; Brian Berkey, “Double Counting, Moral Rigorism, and Cohen's Critique of Rawls: A Response to Alan Thomas,” Mind 124, no. 495 (2015): 849–74; Paula Casal, “Occupational Choice and the Egalitarian Ethos,” Economics and Philosophy 29, no. 01 (2013): 3–20; G. A. Cohen, Rescuing Justice and Equality (Harvard: Harvard University Press, 2008); Serena Olsaretti, “The Inseparability of the Personal and the Political: Review of G.A. Cohen’s Rescuing Justice and Equality,” Analysis 72, no. 1 (2012): 145–56.

  7. Cohen, Rescuing Justice and Equality.

  8. See Scheffler, The Rejection of Consequentialism; Cohen, Rescuing Justice and Equality.

  9. For example, see Cohen, Rescuing Justice and Equality, chap. 3; Berkey, “Against Rawlsian Institutionalism about Justice.”

  10. “Institutions and the Demands of Justice,” Philosophy & Public Affairs 27 (1999): 272.

  11. Besides Tan and Rawls, also see Freeman, Rawls, 124; Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991); Scheffler, “Is the Basic Structure Basic?”; Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), 36.

  12. I get the name from Cohen who argues against Rawls’s “fact-sensitive” constructivism (Rescuing Justice and Equality (Harvard: Harvard University Press, 2008).

  13. For instance, see Laura Valentini, “On the Apparent Paradox of Ideal Theory,” Journal of Political Philosophy 17, no. 3 (2009): 332–355.

  14. See, for instance, Michael Buckley, “Political Constructivism,” The Internet Encyclopedia of Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/poli-con/, May 7, 2019.

  15. For example, Thomas Scanlon, What We Owe to Each Other (Cambridge: Harvard University Press, 2000).

  16. Christine Korsgaard, The Constitution of Agency: Essays on Practical Reason and Moral Psychology (Oxford: Oxford University. Press, 2010), 322.

  17. Korsgaard, 319.

  18. Sangiovanni, “Justice and the Priority of Politics to Morality,” The Journal of Political Philosophy 16, no. 2 (2008): 137-164. Also see Aaron James’s practice-dependence interpretation of Rawls, “Constructing Justice for Existing Practice: Rawls and the Status Quo,” Philosophy & Public Affairs, 33, no. 3 (2005): 281-316.

  19. Justice is made necessary and possible when resources are moderately scarce and claims conflict (Rawls, (TJ, 126). Rawls calls this subjective circumstance “conflicting claims” in (TJ, 257) and “the fact of reasonable pluralism” in his later works (e.g., PL and JAF). In Political Liberalism, he claims that the “serious problem internal to justice as fairness” is that the stability argument is inconsistent with the theory as a whole; the account of stability offers an “unrealistic idea of a well-ordered society” (xv-xvi, my emphasis). Samuel Freeman argues that the inconsistency results from Rawls’s failing to appreciate the “extent of the ‘subjective circumstances of justice,’ or what Rawls later calls ‘the fact of reasonable pluralism’” (“Congruence and the Good of Justice,” in The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), 304.). I agree with Freeman that the extent rather than the content of the subjective circumstances change. In the later works, Rawls abandons his “congruence argument”—the argument for the stability of a just society in Part III of (TJ) that aims to show the congruence of justice and the good. He emphasizes citizens’ irreconcilable “comprehensive moral or religious doctrines” that lead to conflicts in claims to liberties and opportunities (e.g., JAF, 84–85). One’s idea of the good is normally “set within” and “interpreted by” one’s comprehensive doctrine (Rawls, JAF, 19). These doctrines are incommensurable, which leads Rawls to interpret his theory as a “political” theory and abandon the theory’s “partially comprehensive” elements (elements that presupposed the truth of parts of a comprehensive doctrine), such as congruence. See also, Paul Weithman, Why Political Liberalism?: On John Rawls’s Political Turn (New York; Oxford: Oxford University Press, 2013), and Jon Mandle, What's Left of Liberalism? An Interpretation and Defense of Justice as Fairness (Maryland: Lexington Books, 2000).

  20. TJ, 189.

  21. Rawls claims that this circumstance results when people claim a greater rather than a smaller share of the social product, rather than their claiming a greater share because they want more resources than others (TJ, 144).

  22. I am referring to Rawls’s “burdens of judgement” (JAF, §11).

  23. Because of this, Rawls, for instance, says that society will have no shared ends other than those that are part of the conception of justice (JAF, 20). His normative conception of the person assumes only that the persons subject to justice share “higher-order” interests in developing and exercising their “two moral powers.” The two moral powers of free and equal moral persons are a capacity for a sense of justice and a capacity for a conception of the good (JAF, 18-19; cf. TJ, 12, 19, and 120). The first expresses the desire to live according to fair terms of cooperation and the second is an interest in having, revising, and rationally pursuing one’s idea of the good. Both express, and aim to protect, one’s moral agency as a democratic citizen, so no universal idea of the good is assumed.

  24. I do not want my argument to rest on a narrow interpretation of “accurately reflecting or implying” a conception of the subjects of justice in our reasoning, so I intentionally leave it indefinite.

  25. See TJ p. 24 and §5.

  26. Also see John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge: Harvard University Press, 2008), sec. Hume II.

  27. See Scheffler, The Rejection of Consequentialism, chap. 1; Richard Arneson, “Rawls Versus Utilitarianism in the Light of Political Liberalism,” in The Idea of a Political Liberalism: Essays on Rawls, ed. Victoria Davion and Clark Wolf (Lanham: Rowman & Littlefield, 2000).

  28. “Two Dogmas of Deontology: Aggregation, Rights, and the Separateness of Persons,” Social Philosophy and Policy 26, no. 1 (2009): 76–95. The more general way to put both criticisms is that the principle of utility “aggregates” and therefore ignores the separateness of persons. The trade-offs and lack of concern for distribution occur as part of the principle of utility’s aggregation of separate individual’s desires. See Iwao Hirose, “Aggregation and the Separateness of Persons,” Utilitas 25, no. 02 (2013): 182–205.

  29. He also considers and rejects the interpretation that it is a metaphysical claim about conflating numerically distinct persons. 77–79.

  30. 76–77.

  31. I argue for this claim below. However, it should also be noted that Rawls often makes it clear that he is interested in utilitarianism as a political and social doctrine. For instance, see Rawls TJ, §5, and Rawls, Lectures on the History of Political Philosophy, 162.

  32. Teleological theories define the good independently of the right and the right as maximizing the good. Rawls’s third contrast is between utilitarianism as a teleological theory and his deontological theory. See TJ, 30-32.

  33. He also notes that this lack of concern with distribution contradicts justice precepts concerning desert, liberties, and so on. He returns to this with his first contrast since the distribution of liberty, for a utilitarian, only matters to the extent that it contributes to net satisfaction.

  34. The original position also reflects society as a fair system of social cooperation between free and equal citizens, which is naturally specified as including the ideas of equality and reciprocity (JAF, 96). As such, the original position shows the two principles as superior with respect to equality and reciprocity (JAF, 96). For Rawls’s arguments, see (JAF, §§27–38; TJ, §§24–29). I thank Alastair Norcross and an anonymous reviewer for pressing me to clarify why utility is rejected in the origional position.

  35. It also explains why JAF does not mention separateness; it focuses on the original position arguments rather than offering a contrast with the sympathetic spectator.

  36. Edward Andrew Greetis, "Rescuing Rawls's Institutionalism and Incentives Inequality," Res Publica: A Journal of Moral, Legal and Social Philosophy 25 (2019): 571-590. 

  37. G. A. Cohen, Rescuing Justice and Equality (Harvard: Harvard University Press, 2008), 122.

  38. I argue in "Rescuing Rawls's Institutionalism and Incentives Inequality," that Cohen is wrong in thinking that citizens in a well-ordered society face this conflict.

  39. For example, Thomas Christiano, The Constitution of Equality: Democratic Authority and Its Limits (Oxford: Oxford University Press, 2012), 25, 30–31. He also notes that he thinks his principle applies beyond institutions. Thus, he mustn’t see the reasons he gives for focusing on institutions (after giving his abstract principle of equality) as supporting the claim that just institutions are sufficient for egalitarian justice. That is, his reasons may support focusing on institutions, but they do not support institutionalism. In any case, if I am right that justice adjudicates between moral persons, all “impersonal reasoning” with respect to justice is unreasonable as I show below.

  40. Christiano claims that his principle of equality is abstract. His argument only implies that people are due certain treatment, not that individuals have a responsibility to treat other individuals in a certain way. However, this difference in responsibility of treatment requires an independent argument for institutionalism, which he provides. Christiano, The Constitution of Equality: Democratic Authority and Its Limits, 31. So the abstract principle can be used to support act-egalitarianism.

  41. See, for example, Cohen, Rescuing Justice and Equality; Ingmar Persson, “In Defense of Extreme Egalitarianism,” in Egalitarianism: New Essays on the Nature and Value of Equality, ed. Nils Holtug and Kasper Lippert-Rasmussen (Oxford: Clarendon Press., 2011).

  42. Christiano, The Constitution of Equality: Democratic Authority and Its Limits, 14.

  43. Christiano, 17.

  44. Christiano, 19.

  45. Christiano, 20.

  46. Christiano, 20.

  47. Christiano, 24.

  48. Christiano, 26.

  49. Christiano, 26.

  50. Persson, “In Defense of Extreme Egalitarianism.”

  51. For example, Cohen, Rescuing Justice and Equality, chap. Introduction. Cohen assumes that equality is a fundamental moral principle.

  52. He claims that other well-known principles, such as prioritarianism and the difference principle are also ruled out. See Christiano, The Constitution of Equality: Democratic Authority and Its Limits, 23.

  53. See Cohen, Rescuing Justice and Equality, 394–98; Berkey, “Against Rawlsian Institutionalism about Justice,” 713.

Acknowledgements

I am grateful to Cynthia Stark, Chrisoula Andreou, Leslie Francis, Erin Beeghly, Darrel Moellendorf, Daniel Callies, Renaud-Philippe Garner, and an anonymous reviewer for very helpful comments and discussion on earlier drafts of this paper. I also benefited from presenting an earlier version of this paper at The Center for Values and Social Policy, University of Colorado, Boulder Philosophy Department.

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Greetis, E.A. The Separateness of Persons: Defending the Rawlsian Institutional Approach to Distributive Justice. J Value Inquiry 57, 319–341 (2023). https://doi.org/10.1007/s10790-021-09829-7

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