Restricting Justice

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.”1 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,2 and the “housework-shirking” behavior of family members who distribute power and labor unequally according to gender.3 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.4 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,”5 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.6 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”:7 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.”8 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.9 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.”10 According to G. A. Cohen, RCJ is in tension with Rawls's stated justification for it:11 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.12 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.13 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.14 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.15 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.16 According to critics, RCJ is implausible because it renders principles of justice insufficiently attentive to these disadvantages.17 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,18 or provide high-quality subsidized child care to encourage a more equal sharing of domestic labor between genders.19 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.20 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”:21 in liberal societies, exercises of political power are purportedly sanctioned by citizens as a collective body,22 and those citizens are generally unable to withdraw from the jurisdiction of those institutions; thus, exercises of political power should be acceptable to all free and equal citizens. Those who pursue the special justificatory burden strategy argue that an application of principles of justice to the basic structure provides a way to meet this burden. Because the application of principles of justice to political institutions is called for by the justificatory burden those institutions face, RCJ is not arbitrary. Political power does indeed face a justificatory burden. Still, this defense of RCJ is unsatisfactory. In order to justify a restriction of the subject matter of justice, we need to establish not just that exercises of political power face a justificatory burden, but that exercises of political power face a justificatory burden that does not apply to omissions of political power. If—as I shall argue—some omissions face the same justificatory burden that exercises of political power face, then we are left without a principled justification for excluding those individual behaviors that the basic structure leaves unregulated. Because the justificatory burden is not unique to enactments of political power relative to omissions, it will not serve as a principled justification for restricting the purview of justice to the basic structure of society. Political power is thought to face a special justificatory burden because its exercises are legitimate only insofar as they are acceptable to free and equal citizens. Citizens are characterized as possessing two moral powers that underwrite their free and equal citizenship: the capacity for a conception of the good, and the capacity for a sense of justice. They are also characterized as having a higher-order interest in preserving those capacities.23 To protect that higher-order interest, free and equal citizens not only will accept but will in fact insist upon those exercises of political power that are necessary for the preservation of their two moral powers. If citizens' basic liberties are under threat, for example, then their capacity to form and rationally to pursue a conception of the good is jeopardized. Citizens possessed of a higher-order interest in protecting that capacity would call upon their government to enact interventions to protect their basic liberties against infringement, and to preserve social conditions conducive to the development of that capacity in the first place. In short: political power may be a necessary means of amending social circumstances that undermine the development of free and equal citizenship. In these cases, abstaining from exercising political power is unacceptable from the perspective of free and equal citizenship. In a liberal state, then, omissions and exercises of political power face the same justificatory burden: they are illegitimate insofar as they are unacceptable to free and equal citizens. A second condition thought to generate the special justificatory burden for political interventions is the difficulty of amending political institutions or exempting oneself from their jurisdiction. We cannot easily opt out of our society's taxation scheme, for example, or effect meaningful changes to that scheme through our individual actions. But exercises of political power are not unique in their inescapability. Coercive enactments of nonpolitical (hereafter “private”) power can be just as inescapable. Parents, for example, can exert a power over their children that is arguably less escapable and less amenable to change than the political power of the state over its citizens. Moreover, certain exercises of private power are possible only when the state abstains from exercising political power. The parents of Cohen's sick child exercise private power in refusing treatment on the child's behalf, and the child can no more escape that power than can she escape the political power of the state. But the parents' exercise of private power is possible only if the state omits a particular exercise of political power: the enactment of laws that demand life-sustaining medical treatment on behalf of sick children. Insofar as an exercise of private power is inescapable and omissions of political power enable that exercise, the omissions inherit the moral import of inescapability attributed to exercises of political power more generally. There may well be a presumption in favor of political omissions, but this presumption cannot be grounded in the deep inescapability of political power. Because private power often also has this feature, and because private power is possible only because the state omits exercises of political power that would otherwise disrupt it, exercises of political power are not categorically less avoidable than omissions. The justificatory burden strategy does not offer a principled justification for RCJ because it fails to identify a feature of political power that is unique relative to omissions of political power. More generally, the justificatory burden strategy fails because it is insufficiently attentive to the substantively normative project of delineating the basic structure. The political conception of the person as citizen that animates the problem of justice in the first place imposes not only negative constraints on how far the basic structure can legitimately extend, but also positive requirements on how far it must extend: it must be expansive enough to protect the development of the kind of moral personality that animates liberal conceptions of justice in the first place. Some enactments of political power are positively required, and their omission is illegitimate. Moreover, the legitimacy of enactments and omissions is grounded in the same considerations: the needs and interests of free and equal citizens. Because the same considerations that legitimize the enactments also legitimize the omissions, there is no justificatory burden that categorically distinguishes between the two and renders RCJ nonarbitrary. In the remainder of this article, I execute an alternative strategy for vindicating RCJ. I begin by developing an account of the legitimate extension of the basic structure. I argue that the considerations that determine the legitimate extension of the basic structure also justify restricting the subject matter of justice to it: the principle for delineating the basic structure also justifies its role as the primary subject of justice. After defending RCJ against the arbitrariness objection, I turn finally to the task of defending it against the restrictiveness objection. My defense of RCJ utilizes the theoretical resources of political liberalism. We can understand political liberalism as occupying a range on one end of a spectrum of liberalisms, with comprehensive liberalism occupying a range on the other end. Comprehensive liberal theories of justice are based on comprehensive liberal conceptions of the good: conceptions that affirm liberal values like equality, autonomy, and liberty as substantive values that can legitimately and straightforwardly guide the organization of political institutions and justify political action. Comprehensive liberals maintain that liberty, autonomy, and equality are good for people, and that their goodness justifies their role in legitimizing political action. Political liberalism, in contrast, maintains that political institutions and the principles on which they are built must be justifiable independently of any particular comprehensive conception of the good, including any comprehensive liberal conception.24 Because citizens living under free, democratic institutions will inevitably come to affirm different and incompatible conceptions of the good, any political system based on one particular conception will lose the support of those who affirm incompatible conceptions. A political system based on the substantive liberal values of autonomy and equality, for example, will fail to retain the reasoned allegiance of religious fundamentalists who reject those values as fundamental constituents of a good life. In order to ensure that society is stable for the right reasons, then, political liberalism dispenses with comprehensive value judgments, including the liberal notion that equality and autonomy are substantively good for people.25 Two theoretical commitments of political liberalism are especially relevant for our purposes. First, because the stable society is one to which citizens can give their reasoned allegiance, exercises and omissions of political power must be capable of gaining acceptance by all reasonable citizens. This commitment is spelled out in Rawls's statement of the “liberal principle of legitimacy” (hereafter, LPL): “our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in light of principles and ideals acceptable to their common human reason.”26 To meet this burden, political interventions must not depend for their justification on value judgments peculiar to particular conceptions of the good. Crucially, the acceptability to citizens of any particular exercise of political power is a normative matter. For an exercise of political power to be approved by LPL, it need not be acceptable to actual individuals taken as they are. Instead, it must be one that hypothetical citizens would find acceptable given a particular characterization of citizenship. Within political liberalism, citizens are characterized as reasonable and rational, free and and with a higher-order interest in preserving the of Because not all actual citizens are in fact so whether exercises of political power are to is not an matter, but a substantive philosophical The second theoretical commitment of political liberalism is the restricted of justice. Within political liberalism, the of justice must leave space for citizens to affirm and conceptions of the good in their lives. liberal values like autonomy and equality to a the of these values is For example, political must the right of religious fundamentalists to reject such liberal values as autonomy within their and lives. It is by the of justice to the basic structure that social institutions can to maintain the reasoned allegiance of citizens over values and ideals those citizens embrace in their that these two theoretical commitments of political first the justification of political the second the of those in an The justificatory commitment by the normative of political The restricted commitment from the justificatory Political liberalism restricts the of political interventions and citizens' to enact values because political justificatory by on the legitimate reach of political power. of political power must be acceptable from the perspective of citizenship. Because citizens value their capacity for a conception of the good, they will impose a burden for the justification of political interventions within of their in which the enactment of their comprehensive The result is a delineation of certain of life that to be beyond the reach of political certain types of to be by LPL, because they to be unacceptable by the lights of citizenship. behavior within these to fall the basic structure. The restricted in other is not a of certain of life as to political but a of individual by these generate a presumption against certain types of political But political delineation of the basic restricted to its commitment to exercising political power only when that exercise is acceptable from the perspective of citizenship. As such, the presumption against political power in certain of life is when the which that an that of life. This when political values are in political values are the justification for need not on substantive values peculiar to particular conceptions of the good, because a political justification is available. as many that behaviors of individuals within families a presumption against political This presumption is by citizens value their capacity for a conception of the domestic life is a for the enactment of that thus, citizens will demand considerable against political the As a matter of then, will deem many such illegitimate. But the presumption by these is when a particular is approved by on the of political a case of domestic Because citizens are to the of the basic including the right to citizens would accept political to protect of domestic partners. Those are approved by The basic liberties are because political characterization of that they would be by citizens, and on the of this citizens would demand for those This a framework for a more between political and substantive The substantive value of equality is one commitment of liberal conceptions of the good, but it cannot legitimately ground political within political liberalism. Political equality, however, can legitimately ground political The of the from political characterization of citizenship. Political equality that individuals are to the of a certain range of basic to the value of those because citizens would insist upon those as a political value does not depend for its on the moral equality of it from and political of citizenship: citizens of themselves as to certain of equal treatment by their of and commitment to the two moral powers. In those all as citizens, are equal political as a substantive value may also that individuals are to the of their basic liberties and to the material conditions for the exercise of those But equality as a substantive value beyond political it as a matter of moral all are and to be as Political equality that people to be because certain of equal treatment are by the project of of for a society, a project that to the conception of and equality that people to be because people really are moral equality cannot be to ground exercises of political power within political liberalism because not all reasonable citizens affirm the substantive equality of citizens. But the political equality of is of citizens' while many reasonable religious fundamentalists in differences between that justify power and all reasonable fundamentalists accept the political

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