Justice, Democracy and Reasonable Agreement

Justice, Democracy and Reasonable Agreement

Also by Colin Farrelly AN INTRODUCTION TO CONTEMPORARY POLITICAL THEORY CONTEMPORARY POLITICAL THEORY: A Reader (editor)

Justice, Democracy and Reasonable Agreement Colin Farrelly Department of Political Science University of Waterloo, Canada

Colin Farrelly 2007 Softcover reprint of the hardcover 1st edition 2007 978-1-4039-3319-5 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2007 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin s Press, LLC and of Palgrave Macmillan Ltd. Macmillan is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 978-1-349-51650-6 ISBN 978-0-230-59687-0 (ebook) DOI 10.1057/9780230596870 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Farrelly, Colin Patrick Justice, democracy and reasonable agreement/ Colin Farrelly. p. cm. Includes bibliographical references and index. 1. Distributive justice. 2. Democracy. I. Title. HB523.F37 2009 321.8 dc22 2007017072 10 9 8 7 6 5 4 3 2 1 16 15 14 13 12 11 10 09 08 07

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Contents Preface ix 1 The Principled Paradigm of Ideal Theory 1 1.1 Introduction 1 1.2 A simple illustration of the complexity of justice 8 1.3 Some caveats 16 2 The Virtues of Fair Social Cooperation 25 2.1 Introduction 25 2.2 The four convictions grounding civic liberalism 28 2.3 The virtues of fair social cooperation 39 2.4 The central prescriptions of civic liberalism 44 3 The Simplifying Assumptions of Rawlsian Justice 48 3.1 Introduction 48 3.2 The ideal/non-ideal theory distinction 49 3.3 A parody of the original position 52 3.4 Maximin and the cost-blind approach to rights 55 3.5 Problems with the second principle of justice 64 3.6 The unreasonable stringency of the difference principle 68 4 The Cost-Blind Approach to Rights (Continued ) 72 4.1 Rawls and Nozick on property rights 72 4.2 Nozick against taxation 75 4.3 Nozick on rectification 78 4.4 Dworkin and equality of resources 84 4.5 Kymlicka and the rights of national minorities 90 5 Dualism, Incentives and the Demands of Justice 95 5.1 Introduction 95 5.2 Why opt for dualism? 99 5.3 The concern for stability 101 5.4 The duties in non-ideal theory 103 5.5 The duties in ideal theory 111 5.6 Responding to Cohen s question 114 5.7 Conclusion 120 vii

viii Contents 6 Should the Left Embrace Left-Libertarianism? 122 6.1 Introduction 122 6.2 Otsuka on initial acquisition 124 6.3 Making the unjust pay for the disabled 130 6.4 Hypothetical consent vs actual consent 136 6.5 Intergenerational sovereignty 139 7 A Citizen s Basic Income, Workfare and Reciprocity 145 7.1 Van Parijs and real libertarianism 145 7.2 Leisure and the Crazy Lazy challenge 147 7.3 Fair reciprocity and workfare 152 7.4 Self-respect 160 7.5 Conclusion 162 8 Neutrality and Toleration 163 8.1 Introduction 163 8.2 The principle of state neutrality 165 8.3 Toleration and hate speech 169 8.4 Pornography and the issue of harm 174 8.5 Conclusion 177 9 The Dialogical Model of Judicial Review 178 9.1 Introduction 178 9.2 The dialogical model of judicial review 184 9.3 Freedom of expression: A deeper analysis 191 9.4 Why protect freedom of expression? 194 9.5 The underlying rationale of the two-step model 197 9.6 The concentration of communicative power 202 10 Deliberative Democracy 206 10.1 Introduction 206 10.2 The ethics and limits of civility 208 10.3 The problem of large scale 213 10.4 The threat of bureaucratic domination 220 11 Concluding Thoughts and Review 223 Notes 233 Bibliography 242 Index 248

Preface Imagine you are asked to contemplate what would constitute a fair distribution of an abundant stock of resources among ten people who live on a deserted island. These ten individuals are equal in talents and abilities, and the stock of goods on this island is such that none of the basic needs of these ten individuals will go unfilled if they exert some minimal effort to satisfy those needs. So you begin to deliberate about what justice requires in this kind of scenario. Your deliberations might lead you to particular distributive principles (e.g. equality, desert, liberty, democracy) that you feel are appropriate in this kind of scenario. Maybe you believe the resources should be divided equally. Or perhaps you take the view that, given the people in this scenario are all equal in talents and abilities and there is an abundance of resources for them to use, a principle of desert is appropriate. Or you might argue that a principle of liberty would be just From each as they choose, to each as they are chosen (Nozick, 1974, p. 160). Alternatively, you might feel that a democratic decision is appropriate that the people on the island themselves should determine how their resources should be distributed. Consider now a second, more challenging, thought experiment. You are asked to consider what would constitute a fair distribution of resources on a second island; but this second island has a number of complexities that are absent in the first example. This second island does not consist of ten people, but rather millions of people. These people are very unequal in terms of their abilities and talents. Some people are healthy adults, others are young children, some are elderly grandparents, others have disease or a disability and so on. Furthermore, the island s resources are not so abundant that each person can just take what they want to satisfy their basic needs. This island is subject to periodic droughts, periodic attacks (or threats of attack) from hostile invaders, crime and so on. So some rationing of resources is required to sustain the population over time and to protect the islanders. Some of these scarce resources must be diverted to the effort to protect the island (e.g. to feed a strong army and build a fortress) or saved for consumption during the drought season. Fundamental disagreement also permeates the island. People disagree not only about collective goals (e.g. Should certain provisions be rationed but not others? Should the ix

x Preface army be conscripted or voluntary?) and individual aims (e.g. What is the good life? What values should we instill in our children?), but about the means by which such aims could best be achieved. So you begin to deliberate about what justice requires in this kind of scenario. Should the empirical facts and complexities of life on this second island have a fundamental impact on your deliberations concerning what constitutes a fair distribution of resources in this scenario? Some of my readership might believe that it should not. They might believe that the conclusions you reached in the first thought experiment apply (perhaps with a few minor modifications) to the second scenario. If you are inclined to believe this then you will be content to follow political philosophers who posit theories of justice in ideal theory. However, if (like myself) you believe that the complexities of the second scenario mean that any conclusions reached in the first thought experiment will have little bearing, if any, on the second scenario, then you will take the view that we need to start afresh. We cannot simply modify the conclusions from the first thought experiment and apply them to the second scenario. The vision of political philosophy/theory 1 defended in this book is the vision outlined by John Dunn (1990) in his article Reconceiving the Content and Character of Modern Political Community. Dunn claims that the purpose of political theory is to diagnose practical predicaments and to show us how best to confront them. Doing this, he adds, requires us to develop the following three distinct skills. 1. Ascertaining how we got to where we are and understanding why things are this way. 2. Deliberating about the kind of world we want to have. 3. Judging how far, and through what actions, and at what risk, we can realistically hope to move this world as it now stands towards the way we might excusably wish it to be. (Dunn, 1990, p. 193) The theory of distributive justice I defend in this book is one that aspires to develop these three skills. The three skills identified by Dunn require a political theory to be well grounded in terms of both the normative and empirical assumptions and arguments it relies upon. Let me elaborate on what I take these three skills to require of a political theory that addresses the specific issue of domestic justice in affluent liberal democracies. The first skill requires a good comprehension of the empirical realities of such a society. What are the social, political and economic histories of such societies? Telling this story is useful for understanding

Preface xi the current predicaments of one s society. It might help us to understand why concerns of racial or gender inequality arise, or concerns about environmentalism, health care and welfare reform. Knowing something about the history of the culture, people, political institutions, economy and so on of the society in question is important for being able to both diagnose its current ills and make a realistic prescription for remedying these predicaments. Knowing one s past is important for deliberating about what is feasible for one s future. Thus the first skill relates to the third skill noted by Dunn. This skill requires a political theory to be pragmatic in terms of confronting the range of options realistically open to us as we aspire for a more just and desirable social arrangement. The second skill is, as Dunn notes, one that is less explicit in its demands for imaginative self-discipline. A great deal of contemporary political philosophy focuses almost exclusively on this second skill. This is perhaps unavoidable as most contemporary discussions of distributive justice function at a highly abstract level and thus detach themselves from an appreciation of the empirical realities entailed by the first and third skills. In their haste to determine what the principles of justice are, most contemporary political philosophers function at the level of ideal theory. Functioning at ideal theory means one can bracket (or ignore) most non-ideal considerations, such as a society s particular history (e.g. slavery, patriarchy and colonialism) and the facts of scarcity, non-compliance, indeterminacy, fallibility, pervasive disadvantage and disagreement. Many principle-oriented theories of justice make large, contentious empirical assumptions. And what is truly disconcerting is that many of the political philosophers who put forth the theories defending these principles do not even appear to realize they make these assumptions. This is troubling as it not only casts skepticism on the viability of their practical prescriptions, but it also calls into question the integrity of their so-called philosophical examination of justice. One role of the philosopher is to critically assess our basic assumptions. But in their rush to pass judgement on what constitutes a fair distribution of goods X, Y and Z, many contemporary political philosophers have uncritically internalized a number of contentious assumptions that warrant closer scrutiny. Political philosophers would be better positioned to reduce their armchair theorizing if they engaged in a self-conscious dialogue not only with other philosophers (e.g. libertarians and conservatives), but also with executives, legislatures, courts, citizens and so on. Doing this ensures that non-ideal considerations, such as budget constraints, disagreement, limited knowledge and indeterminacy, will

xii Preface figure prominently into our philosophical analysis. Rather than bracketing these complex considerations we ought to endorse a public philosophy that takes non-ideal considerations seriously. In this book I do not seek to answer the bold and ambitious question, What is Justice? When one constructs a I-expect-you d-all-like-to-knowwhat-i-would-do-if-i-ruled-the-world (Waldron, 1999, p. 1) theory of justice, one devalues the importance of democracy by presupposing that one can determine what justice requires independently of a democratic process. My aim is more modest, though I believe still important. That aim is to help us theorize about answering important normative questions of justice. I defend a virtue-oriented theory of justice which I believe will help enhance our deliberations about justice. But the theory does not seek to pre-empt our deliberations by endorsing specific policy prescriptions that make democracy and politics superfluous. Yet the theory does take a stand on certain issues and it does lead us in the direction of certain general institutional arrangements and attitudes of personal behavior. It does this in a manner very different from many of the principle-oriented theories that dominate much of contemporary political philosophy. I aim to make a case for the kind of political theory that Dunn advocates. One that combines our forward-looking aspirations with an appreciation of the empirical realities of liberal, unequal, multicultural societies that exist in an era of rapid globalization. These are realities that are often bracketed or ignored by the abstract analysis employed by political philosophers who function at the level of ideal theory. This project has evolved over the course of almost a decade, as I moved from different departments, institutions and continents. When I initially completed my PhD dissertation 2 in 1999 I had envisioned modifying that dissertation into something I could publish as a research monograph. In that dissertation I defended John Rawls s theory of justice as fairness against a variety of (what was then) recent criticisms. However, rather than re-working the dissertation into a book I decided instead to write a textbook on contemporary political theory (Farrelly, 2004). I believed that investing my energies in such an enterprise would help expand and broaden my interests. The great thing about writing a textbook is that it forces one to give a fair presentation of traditions that one might have been inclined to assail in their other research. After writing chapters on the critics of liberalism, and trying to bring out the practical implications of liberal theories of justice, I slowly began to grow more and more discontent with the theorists I traditionally aligned myself with (i.e. John Rawls and Ronald Dworkin). I realized that there was

Preface xiii something inherently problematic about the way most analytic political philosophers approached the issue of distributive justice. They functioned at the level of ideal theory and framed the debates about justice as a search for the one or two fundamental principles of justice. And I realized this imposed a number of severe limitations on a theory of justice. Around the same time I began writing the textbook I switched from teaching in a philosophy department to teaching in political science departments. I now realize that this also had an enormous impact on my intellectual development. I found that political science students were less content than philosophy students to debate abstract political theory for its own sake. They wanted to know how the theory relates to the real world. And the events of September 11, 2001, made the limitations of ideal theory even more evident to me. Determining what justice requires in a fully compliant, closed society was very different from determining what justice required in an open society that is subject to the vulnerabilities that arise in a situation of partial compliance. After spending 3 years working on the textbook, I realized that I could not return to the defence of Rawls that I put forth in my dissertation. While I still considered myself (and still do) a liberal egalitarian, I was not satisfied with most of the arguments advanced by theorists who align themselves with that tradition. Many of the shortcomings of liberal egalitarianism, I realized, could be traced back to the idealizing assumptions of, for example, Rawls s account of justice. Defenders of Rawls (and Rawls himself) have valiantly come to his defence to show that one can modify the theory to address these concerns. So some tinkering with Rawls s comments about the family gives you liberal feminism (à la Susan Okin, 1989), some tinkering with Rawls s assumption about society being closed gives you global justice (à la Charles Beitz, 1979), some tinkering with the assumption that all people fall within the normal range of functioning gives you an account of just health care (à la Norman Daniels, 1985), and some tinkering with Rawls s assumption that society is culturally homogenous gives you a liberal account of multiculturalism (à la Will Kymlicka, 1989a). Rawls himself endorsed many of these tinkerings, and he actually tinkered with his original theory by making it more cognizant of the fact of reasonable pluralism and thus in Political Liberalism he presents the theory as a political conception of justice. A good deal of my own research, developed in my PhD dissertation, was further tinkering of this sort. I tinkered with Rawls s account of civic virtues and neutrality (Farrelly, 1999) so that he could address

xiv Preface the concerns of communitarians (Sandel, 1996). I also tinkered with his account of the natural duties of justice (Farrelly, 2000, 2005) so he could address the concerns of egalitarians (Cohen, 1997, 2000). But after Rawlsian justice has undergone so much cosmetic surgery one has to begin to wonder whether the theory these various defenders of Rawls advocate really resembles the theory Rawls defends in A Theory of Justice and Political Liberalism. There comes a stage where those of us who defend Rawls must realize that the sheer volume of qualifications we make in defence of the theory itself constitutes a reason for re-thinking the viability of Rawlsian justice. I have reached that stage, and so I present the argument developed in this book as a rival to Rawls s account of justice, though my theory shares many of the same commitments of Rawls s account. The theory I defend in this book is a virtue-oriented account of justice entitled civic liberalism. No doubt defenders of Rawls will want to defend Rawls against my criticisms by making yet more tinkerings (e.g. pointing out that Rawls also emphasizes the virtues of fair social cooperation, 3 the demands of public reason, etc.). Such responses would probably have some merit. But I do not want this book to inspire more tinkering with Rawlsian justice. I take the central thrust of the Rawlsian project, as defended in A Theory of Justice and Political Liberalism, to be a defence of his two serially ordered principles of justice. And that is the project I criticize when I critique Rawlsian justice. What is surprising about the Rawlsian canon is that, despite all the tinkerings with Rawls s theory to equip it to address patriarchy, global poverty, health care, multiculturalism and reasonable pluralism Rawls himself did not change (at least substantially) the content of the theory. The two serially ordered principles of justice remain the principles of justice. How can that be so? How can the principles of justice that are (arguably) appropriate in a scenario where concerns of patriarchy, global poverty, health care, multiculturalism and reasonable pluralism do not arise be the same principles of justice that are appropriate in a society where such concerns do arise? Surely this is not just a coincidence! Rather, defenders of Rawls have been too vigilant to defend the theory in light of overwhelming difficulties and I, for one, have finally thrown in the towel. In fact, I am willing to abandon the principled paradigm more generally in search of a new approach to distributive justice. And I welcome my readers to join me in that search. I know that many liberal egalitarians will want to resist abandoning ideal theory and the principled paradigm. Talk of virtues conjures

Preface xv up visions of perfectionism, communitarianism or even conservatism. These are concerns that have weighed heavily on my own deliberations and they have shaped the theory I develop in this book. So I acknowledge that the current project is a risky project. But the status quo has risks as well. To remain in the principled paradigm of ideal theorizing is to remain detached from real politics and real societies. Given this prospect, I think liberal egalitarians should expand their theoretical base beyond the principled paradigm. We have little to lose and much to gain. I have presented various parts of this book, in one form or another, at a number of venues. I am very grateful for the useful and instructive feedback I received from my presentations at Aberdeen University, the University of Birmingham, McMaster University, Wilfrid Laurier University, the Political Studies Association Conference, the International Social Philosophy Conference, the UK Association for Legal and Social Philosophy Conference, and the Canadian Philosophical Association and Canadian Political Science Association conferences. A diverse range of individuals provided comments on early drafts of some of these chapters. In addition to numerous anonymous referees who commented on drafts of various chapters, I am also grateful to Chris Bertram, Stephen Clarke, Matthew Clayton, G. A. Cohen, Patrick Farrelly, Loren King, Colin MacLeod, Michael MacMillan, Liam Murphy, Michael Otsuka, Thomas Pogge, Hillel Steiner, Andrew Williams and Jonathan Quong for their comments on various chapters of this book. An insightful and helpful anonymous referee report on a draft of the complete manuscript also helped me make some further revisions to the book. I am also extremely grateful to the members of the democracy reading group at Waterloo University, especially Lorraine Besser-Jones, Grahame Booker, Sharon Lee and Jan Narveson, who took the time to read through and discuss each chapter of the book with me in great detail. And last, but by no means least, I wish to express my longstanding gratitude to my wife Lori and my two young sons Connor and Dylan. My relationships with them are a major source of inspiration for the arguments developed in this book. Temporal, social beings who strive to live a life with moral integrity will have a deluge of obligations and commitments they must try to balance and accommodate. And various examples in this book are drawn from my own personal struggle to address the conflicting demands of prioritarianism and partiality.

xvi Preface This book builds upon a series of articles I have previously published. I am grateful to the following publishers for granting me permission to reprint my published articles in this book: Justice in Ideal Theory: A Refutation (forthcoming) Political Studies (Blackwell Publishing). Civic Liberalism and the Dialogical Model of Judicial Review Law and Philosophy, 25(5), 2006, pp. 489 532 (Springer Publishing). Dualism, Incentives and the Demands of Rawlsian Justice, Canadian Journal of Political Science, 38(3) (2005) 675 95 (Cambridge University Press). Making Deliberative Democracy a More Practical Political Ideal, European Journal of Political Theory, 4(2) (2005) 200 8 (Sage Publication). Taxation and Distributive Justice, Political Studies Review, 2 (2004) 185 97 (Blackwell Publishing). Neutrality, Toleration and Reasonable Agreement in D. Castiglioni and C. Mackinnon, eds, Toleration, Neutrality and Democracy (Amsterdam: Kluwer, 2003). The Social Character of Freedom of Expression, Canadian Journal of Law and Jurisprudence, 14(2) (2001) 261 71 (Faculty of Law, UWO). Justice and a Citizens Basic Income, Journal of Applied Philosophy 16(3) (1999) 283 96 (Blackwell Publishing).