The Anatomy of Justice

On the opening page of John Rawls’s A Theory of Justice, readers are told that “justice is the first virtue of social institutions, as truth is of systems of thought.” If a social arrangement is unjust, then it must be abolished or reformed. It cannot be redeemed by its realization of other values or ideals. These famous remarks, which are immediately qualified by Rawls as expressed too strongly, are perplexing on reflection. Either the remarks express a kind of fanaticism, whereby one value ‘justice’ is taken to trump every other value, or they express a certain tautology, whereby justice is construed to reflect all the relevant values of political morality, and hence must be the first virtue, as it encompasses all the others. Gina Schouten’s engaging book The Anatomy of Justice, which is in many respects a sympathetic extension of Rawls’s project, responds to this conundrum by arguing that we need two distinct notions of justice, one that applies narrowly to distributions of social goods and one that encompasses all sources of political value and provides an overall evaluative ranking of social arrangements. The former notion, which Schouten terms “aspirational justice,” is but one important input into the all-things-considered evaluation provided by the later notion, “verdictive justice.” Inattentive readers of Schouten’s book might suspect that she has renamed G. A. Cohen’s much-discussed distinction between justice and rules of regulation. But that suspicion would be a mistake, since Cohen’s rules of regulation respond not only to all relevant political values but also to considerations of feasibility and to expected shortfalls of political will and human motivation to do what should be done. Verdictive justice is a purer account of what fundamentally matters from the standpoint of political morality than Cohen’s more prescriptive and action-guiding, but thereby less evaluatively pure, rules of regulation. Still, “aspirational justice” is what Cohen sought to rescue from Rawls’s constructivism, and Schouten’s agreement with Cohen that fairness in the distribution of social goods should not be identified with the distribution favored by Rawls’s principles of justice will give more orthodox Rawlsians pause. For Rawlsian justice, conceived verdictively, may not be fair, even under the best of conditions, and thus “justice as fairness” would not be an apt slogan for Rawlsian justice.So, while Schouten’s anatomy of justice is Rawlsian in spirit, it does not aim to reproduce or vindicate Rawls’s views. By articulating a framework of the things that matter fundamentally from the standpoint of political morality, it provides a way of capturing certain key Rawlsian ideals while also providing critical distance on them. As an illustration, consider Rawls’s signature distributive principle, the difference principle. That principle, Schouten contends, is not compelling as a principle of distributive fairness. It is better thought of as a compromise between two aspirational values—distributive fairness and efficiency. Distributive fairness, in turn, is expressed by the luck egalitarian principle that Rawls called “the principle of redress,” whereby undeserved inequalities call for correction. But the principle of redress applies to all goods, natural and social, and not just to the social primary goods that are the currency of Rawlsian distributive justice. Accordingly, the principle of redress, although Schouten does not highlight this point, does not sit well with the general Rawlsian social contract approach under which the goods subject to distribution are those produced by social cooperation. The anatomy of justice, or at least Schouten’s favored articulation of the anatomy, in this way appears to pull us beyond political contractualism.Whereas verdictive justice is the all-encompassing value of political morality, and aspirational justice is one important input into it, the star of the show in Schouten’s anatomy is not justice but legitimacy. Legitimacy constrains the pursuit of aspirational justice and other aspirational values, and it takes strict priority over all conflicts with them. Schouten claims that legitimate political arrangements manifest mutual respect among citizens, and nothing can further verdictive justice by flouting its demands. Legitimacy is here understood in politically liberal terms, making the anatomy of justice a version of Rawlsian political liberalism.The Anatomy of Justice consists of an introduction and seven chapters. The introduction and the first chapter helpfully outline the structure of the anatomy and explain its pluralistic character. The next three chapters discuss the demands of distributive equality, both as they relate to aspirational justice and to legitimacy, as well as the demands of legitimacy, including both its procedural and substantive elements. These three chapters also show how the anatomy of justice is responsive to both distributive and relational egalitarian commitments. The final three chapters address egalitarian critics of liberalism, especially radical feminist egalitarian critics, and they argue that liberalism, as the anatomy of justice illustrates, has the critical resources to address problems that the critics charge it cannot address. Among other topics, these chapters engage with debates over basic income proposals, the site or subject matter of liberal justice, and the adequacy of reflective equilibrium for political and social critique. The concluding chapters are also an extended exercise in liberal egalitarian applied theory, showing how the ideals and values in the anatomy of justice can inform criticism, including radical criticism, of existing institutions and culture under present conditions.The Anatomy of Justice is an excellent book. It will be primarily of interest to Rawlsian political liberals and feminist critics of liberal egalitarianism. But it should interest political philosophers more generally as well, as it makes significant contributions to a number of important debates in contemporary political philosophy, including those related to distributive and relational egalitarianism, ideal and nonideal theory, the possibility and nature of legitimate injustice, and the relationship between justice and culture.The book is filled with interesting arguments and insightful discussions, two of which can be highlighted here. The first concerns the strict priority that the anatomy of justice assigns to legitimacy. Schouten is admirably clear on the stringency of the priority. “When pursuing distributive equality or any other aspirational value comes at a cost to legitimacy, that pursuit always leads to a less valuable social arrangement on the whole, no matter the magnitude of the gain or loss in question” (6). As Schouten notes, many will find this kind of trumping priority to be deeply implausible. Surely, the thought goes, a large enough gain in aspirational justice or some other aspirational value overrides a very small deficit in legitimacy. Schouten has two responses. First, we must attend to the role that legitimacy plays in the anatomy. It is the value (or more precisely the value of mutual respect that undergirds it) that adjudicates conflicts between other political values and ideals. If we treat legitimacy as just one political value to be balanced or weighed against other political values, we misrepresent its character as an adjudicatory value. Second, and responding in particular to the alleged implausibility of assigning strict priority of legitimacy over aspirational justice, Schouten argues that the distributive requirements of legitimacy are considerably more demanding than they are normally taken to be. Within political liberalism, standards of legitimacy delimit the set of reasonable conceptions of justice, but such standards impose, in addition to priority for the basic liberties and the securement of a basic minimum of all-purpose means, a demanding egalitarian requirement on the distribution of social goods. “To be reasonable,” Schouten claims, “a conception of justice also must recognize a baseline of equal shares and deem talent unfit to justify deviations from that baseline” (94). The strong egalitarian demands of legitimacy ensure that the magnitude of aspirationally unjust material inequality that is compatible with legitimate arrangements will not be excessive, thereby making the strict priority of legitimacy over egalitarian aspirational justice easier to stomach.This line of argument will reassure strong egalitarians that legitimacy is not an unacceptable constraint on the pursuit of aspirational justice. But it comes with a significant cost. By packing more egalitarian content into the standard of legitimacy than Rawls envisioned, the set of reasonable (i.e., legitimate) conceptions of justice contracts. That means that the anatomy of justice makes political liberalism less accommodating to pluralism, including otherwise reasonable pluralism. The parochial character of political liberalism, which is already alarming to some critics, is exacerbated when the parish to which it applies narrows. Schouten allows that citizens with less robust egalitarian commitments can be committed to public reason and to the burdens of judgment and yet err in their judgments about the distributive demands of legitimacy. They are not, she says, unreasonable in virtue of that kind of mistake. Yet this concession prompts a worry (94n4). If such citizens were indeed granted membership in the justificatory community, and if their views were to prevail in democratic debate, then the resulting arrangement would be legitimate; and if it were legitimate then its relatively inegalitarian character would raise the worry about the strict priority of legitimacy over egalitarian aspirational justice that Schouten’s argument was intended to silence.The second of Schouten’s arguments that I will highlight here concerns the legitimacy of the state’s promotion of autonomy. Autonomy is, on the standard political liberal reading, a comprehensive ideal, one that the state should not favor, even if it is granted that it is a key component of living well. Against this standard picture, Schouten argues that if actual social conditions are such that they make it costly to realize comprehensive autonomy in important areas of one’s life by, for instance, institutionalizing sex-based work specialization, then there can be a politically liberal argument for valuing, and favoring in political deliberation, comprehensive autonomy. Under these conditions, those who realize comprehensive autonomy, Schouten claims, provide valuable assurance to others that “each of us could acquire the capacities involved in using our moral power to revise our conception of the good” (139). The argument here is focused narrowly on the issue of overcoming the gendered division of labor, but its form is general. When actual social conditions militate against the realization of comprehensive autonomy, there is an instrumental argument for state support for this ideal. Just as sex-based work specialization can “affront” the value of autonomy, so too, presumably, can other social conditions. The distance between the political liberal and the comprehensive liberal who champions autonomy thus seems to close considerably on Schouten’s argument. It can be said in reply that there remains the crucial difference that the political liberal, in contrast to the comprehensive liberal, values comprehensive autonomy only instrumentally as a means to reciprocity and stability, and not as a key contributor to the human good. But that reply sits in tension with the political liberal claim that the social conditions necessary for the adequate development of the moral power to form, pursue, and revise a conception of the good, the very conditions to which the value of autonomy purportedly contributes to instrumentally on Schouten’s argument, are themselves a means to our good. Accordingly, if Schouten’s intriguing argument is sound, then the difference between comprehensive autonomy-based liberalism and political liberalism may boil down not to a difference over whether the state should promote autonomy, and not whether the state can do so in the name of promoting the good of its citizens but whether its doing so is a only a means to, or also a constituent element of (as the comprehensive liberal claims), their good.Let me conclude by mentioning an interesting puzzle that arises from Schouten’s anatomy. The puzzle centers on the primary value of legitimacy and it arises from the following claims that Schouten makes about it. First, legitimacy is a matter of the moral permissibility of political action; and, second, legitimacy is a scalar value, one that has multiple dimensions and can be realized to different degrees. Now, permissibility is normally taken to be a dual operator. We ask, Is this arrangement permissible to impose and enforce or not? But what exactly would it mean to say that two social arrangements are each legitimate, but that one is more permissible to impose and enforce than the other?Schouten briefly contrasts legitimacy with authority. She allows that a political arrangement can have authority and thus be such that those subject to it are obligated to comply with it, while not being fully legitimate. A partly illegitimate, but still legitimate to some threshold, political regime may enjoy authority. But this helpful clarification does not dispel the puzzle. We turn to legitimacy because we are interested in understanding the permissible exercise of political power, but authority, not legitimacy, now seems to answer to that question, even if justified authority must meet a legitimacy threshold.Rawls sometimes described his liberal principle of legitimacy in terms of the moral permissibility of the exercise of political power, but he also, at other times, employed the more obscure idiom of propriety. The exercise of political power is only fully proper, he claimed, when the liberal principle of legitimacy is satisfied. Talk of propriety fits well with a scalar notion of legitimacy, but it leaves us in the dark as to how exactly assessments of greater and lesser degrees of legitimacy bear on the rights and duties of citizens. Progress on that issue would be a welcome development for the political liberal project, and the structure and clarifications provided by Schouten’s anatomy of justice prove useful here. We can say, on Schouten’s anatomy, that when we judge one social arrangement to be more legitimate than another social arrangement that also meets the threshold standard for legitimacy, we have moved beyond the issue of the moral permissibility of the exercise of political power. After all, by stipulation both arrangements can be enforced permissibly by authorities. We are now just expressing an evaluative ranking. The more legitimate arrangement, we are saying, is the more verdictively just arrangement. Legitimacy is a special value because it adjudicates conflicts with other political values. Full propriety is a matter of getting that adjudication fully right

Economic Justice · Extension (predicate logic) · Politics · Power (physics) · Suspect · Value (mathematics) · Value theory · Virtue · Critical Theory and Philosophy · Philosophical Ethics and Theory · Political Philosophy and Ethics