Wk9-Social Justice (need it tomorrow!)

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CHAPTER 3

Distributive Justice

A SOCIAL THEORY OF DISTRIBUTIVE JUSTICE BlUSt engage soci- etal and historical developtnents in the form.ation of conceptions of justice. In other word<>, to corne to son1e understanding as to what is seen as just or unjust we must look to historical developments and how justice notions arrive at s01ne general understanding and acceptance. Distributive justice has to do with notions of fairness in the distribution of benefits and burdens in a society (Miller 1999, 2). Notions of distributive justices move from the grand theo- retical narratives of justice toward tnore concrete understandings of justice. Depending on the particular construction, ideas of fairness and benefits vary. Accordingly, our understanding of social justice includes understanding distrib- utive principles (fair allocation of r ew a rds and burdens) and retributive prin- ciples (appropriate responses to harm); how they relate to political econorny and historical conditions; the ir local and global manifestations; the struggle tor their institutionalization; how hutnan well-being and d eveloptnent at the social and individual le vels are enhanced by their institutionalization; and developing eval- uative criteria or processes by which their enhancen1ent or denial result.

CLASSIC SOCIAL THEORISTS ON jUSTlC_E

Emile Durkheim (1858- 1917)

Durkhein1's influential writings tocused on the nature of social solidarity. He found that the existing form of law ·was an index to the kind of solidarity in existence. He identified two forms ofsolidarity.These two forms ofsolidarity- tnechanical (based on similari ty) and organic (based on differe nces)- w·ere sit- uated in historical developments. He theorized that society tended to develop toward ever tnore differe ntiation. The k e y factor for social diffe rentiation (e.g., division of labor in society) was tnoral/social d e nsity. A society, without any disturbance from external f.'lctors (political, econon1jc, etc.), was to naturally progress from the less differentiated fonn (e.g., less division of labor), with a consequent pre1nium on m echanical bonds of solidarity, to a greater ditTeren- tiation and organic bonds of solidarity. This was the course of the spontaneous division of labor .

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30 SOCIAL jUSTICE

The colJective conscience (a conunonly internalized notion of morality) of the less developed forn1 assured stability. With the greater division of labor, ho\-v- ever, it became undermined considerably. Within a n1echanically bonded society, there are few interrelated, complex tasks. Most can n1aster these to one degree or another. There is, therefore, little dependence on others for carrying out one's own duty. In such circumstances, ideas of tnorality and justice are shared as the functions of each within the group are conunon and undifferentiated. When a society differentiates and individuals take on speciftc tasks, individuals bec01ne n1ore dependent on each other. Consider, for exatnple, the tnovement from the pen as the instnunent for writing toward con1puter software. In the university of old, if smdents broke or lost their pens, they could simply pick up another and continue writing. Today. if one's software program became infected with a virus or suffered. some other mysterious injury, the ·writer would likely have to depend on a university computer technician to repair or replace the software. In this environment, the writer must becon1e adept at communicating with the techni- cian . It is unlikely that the writer will share ·with the technician many ideas of the pritnacy of technology in the writing process. However, because of the writer's dependence upon this person, she will no doubt con1e to understand and accept many ideas about the importance of backing up data, updating virus protection software, and other cOinputer-related tasks that serve the interests of both the writer and the technical person.These computer protection ideas are clearly part of the collective conscience of technology-based workers.

Whether this acceptance of the protection of software is a moral st.:1nce is an interesting idea to consider given Durkheim's (1984) writings on morality: "We may say that what is n1oral is everything that is a source of solidarity, everything that forces man to account of other people, to regulate his actions by sotnething other than the promptings of his own egoism, and the n1ore nun1.erous and strong these ties are, the tnore solid is the morality"' (331). One could argue then that the acceptance of the need to protect one's computer software in the service ofthe greater good ofthe university (to protect the sys- tems of others, reduce the dernand on technical staff, etc.) is a moral choice. This choice is made ·when the consciousness of the writer bas shifted to include the ideas of the technical staff. This is a form of organic solidarity, as it is not necessary in the t.nechanical sense. The writer could give up software and go back to the pen, thereby eliminating the concerns of the technical staff. This would not only reduce the productive capacity of the writer, but would also retnove her frorn organic solidarity with others in the university.

The move from less to more division of labor is an artifact of social devel- opment requiring the specialization of labor. This development is not an indi- vidual or a moral choice; it is a social force to which ·we adapt for the purpose of continued social progress. This shift develops in response to the adaptive needs of individuals and groups ·within a given society. ~'loving fron1 one form

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Distributive Justice 39

subject, a legal subject in law with forn1al rights. This is the notion of legal fetishism., ·which is seen as hotnologous to commodity fetishisn1. In both cases, differences and concrete existence (qualitative differences) is replaced by abstract quantitative terms. Thereafter, justice is measured in terms of applying an equal measure (criteria) to unique persons. [n other words, an equal rneasure is applied to differences. For Marxists, an equal standard applied to differences .is inherently unequal (unjust).

In the structural version of Marxisrn, then, notions of justice etnerge from these con1modifi.cation processes. Fairness in contract dealings is only an out- come where reasonable men and vvotnen prevail as juridic subjects in law. This is in line 'vvith Max Webees rnodel of formal rationality and in line with Durkheim's consensual contract. The person becomes an abstraction that can be sirnply plugged into various principles of law to see to what degree he or she is in conformity w.ith the reasonable man or woman in law. A person bec01nes a mathematical average.

The third Marxist n1odel could be referred to as the structural interpella- tionist perspective. In late capitalisn1-that is, in the advanced n1onopoly cap- italisrn that is said to have emerged in the early to mid-1900s-the state had to becorne rnore actively involved in overcom.ing the internal contradictions that threatened it. [t also had to deliberately develop legitimation principles that supported decision n1aking. Thus, in law the principle of interest-balancing now prevails. The court justices weigh the government's interests against a particular person's or group's interests and determine the appropriate balance. The notion of the formal, abstract subject is now being replaced with the notion of interpellated rights: various groups in society are now relegated to positions (i.e., status) ·with particular rights respected in law. Consider how the notion of Hpersons" found in the due process clause of the Fourteenth An1endn1ent is continuously redefined by the higher courts. Status now deter- mines rightc; respected in law. Justice in this model becomes much n1ore con- tentious. It is mobilization of interests and struggle that accounts for particular rights and stabilized expectation<; of justice.

In a Marxist analysis, this mobilization of interests is based on class inter- ests and may be an expression of capitalist interests or working-class interests. When corporations seek protection fr01n one set of laws as individuals and exceptions frorn other laws as corporations, they are seeking a particular status in keeping with their interests. This is an exatnple of a n1obilization by the capitalist class in its own interest. When a labor union seeks recognition in a workplace, it is seeking a particular status in its interest. If the union is denlo- cratic and representative of its members, it would be an exatnple of a mobi- lization in the interest of the working class .

A fourth and rnore recent Marxist-inspired model is the constitutive modeL In this view, base affects superstructure, but superstructure affects base. Each is

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Distributive Justice 31

of solidarity to another requires a shift in consciousness fron1 local common concerns to one that includes the concerns of other workers "vithin a struc- ture. This shift in consciousness occurs in response to the new social realities that require more varied interaction and is not necessarily an individual choice, though Durkbeim would argue that it is moral if it serves social cohesion.

Along with these developments in social structure there emerged certain conceptions of justice, Jaw, and notions of contract. Repressive law was c harac- tet·ized by s~me loss inflicted on the offender, s01ne pain and suffering. This included loss to life, liberty, fortune, property, and honor. It is akin to present-day cri1ninal law. Repressive Jaw was most often found in societies with less division of labor. Restitutive laws, on the other hand, focused on "the re-establishm.ent of troubled relations to their normal state" (Durkheim 1964b, 69). These are rnore in the fonn of civil, constitutional, administrative, and conunercial laws. Their emphasis has a nonpunitive focus . These laws becan1e more abundant with the greater division of labor in society. If we consider the complexities inherent in the ever-increasing specialization of labor and the expansion of our collective conscience to include new ideas, it follows that more complex notions ofjustice must also develop.

For Durkheirn., it was the contract that w as "par excellence, the juridical expression of co-operation .. . the contract is the syrnbol of exchange" (1964b, 123, 125). And, hence, justice was to be understood in the context of the type of contract in existence, which in turn was based on the form of society, reflect- ing the general degree of the division oflabor in a society. In the less developed form it was the blood covenant that assured justice. Each exchanger would duplicate the blood ties of family by exchanging drops of blood, for exatnple. One could also share common food or drink. The real contract "\vas where each exchanger sin1ply exchanged without ceremony. The solen1.n contract included a declaration in words and an oath surmnoning up son1e divine being for e nforce 1nent (e.g.,"So help tne God").The consensual contract, or contract by n1uU1al consent, was a n1ore recent invention and separated the invocation of the divin e from verbalized pron1ises. I.t catne about due to the new pace of the deve loping conunercial order and invoked wiLL Each exchanger was asstuned to be free to make an exchange. But, for this contract, Durkhei1n recognized that even though two people tnight freely enter an exchange relation, one may have greater abilities to impose his will on the exchange than the other. For exatnple, conunon ·workers had little to say about the terms of the work con- tract they enter. "Take it or leave it" was the etnployer's stipulation.

This led to Durkheim's ideal contract, the contract of equity, or the just contract. Justice, tor Durkheim, should not revolve around consent. Instead, it should be connected with social value. According to Durkheim, social value has three component.<>: "[1] the sum of efforts necessary to produce the object; [2] the intensity of the needs ·wh-ich it satisfies; and [31 the extent of the

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SOCIAL jUSTICE

constin1tive of the other, and the two elen1ents of the mode of production can no longer be easily separated, each inheres in the other. Legal consciousness and what constitutes "justness" is an ongoing process. In Ewich and Silbey's study of struggles within legal structure, they argue that "as individuals express ... their consciousness, they draw from. and contribute to legality . .. [Pleople relied on culturally available narratives of lavv to interpret their lives and rela tionships" (Ewich and Silbey 1998, 247).Thus in this perspective,justice undergoes an active and ongoing constitutive construction in everyday story- te lling. When faced with conflict, subject'> resort to cultural recipes in combi- nation with what is understood as law. There is, in short, coproduction of the n1eaning of justice. The incorporation of the idea of conflict into a Marxist analysis is important given Marx's writint,r-s concerning the centrality of con- flict in social arrangernents and the necessity of struggle for social change.

Marx's understanding of justice as based on the n1ode of production was also informed by the class structure. As he and Engels wrote in the N[anifesto of the Communist Party, "The history of all hitherto existing society is the history of class struggles'' (Marx -and Engels 1973, 1 08). It is through this struggle that Marx places the irnpetus for revolution in the tnode of production and the evolution of hun1an consciousness. Marx was clearly aware of the interplay b etween struggle, change, and consciousness. As Marx savv it, class struggle d evelops the consciousness of those involved in struggle~ therefore leading to increased possibilities for social change through revolutionary processes (Hallas 2003). These processes fi1rther develop the consciousness of those involved. These ideas clearly infonn E\vich and Silbey's (1998) conception of justice as a co-production. However, because consciousness reflects social conditions, collective understandings of justice will be rooted in the social conditions of the time.

Marx has also postulated an understanding of history based on the Jnode of production which inforn1ed his understanding of the en1ergence of justice principl es . "Right can never be higher than the econon1ic structure of society and its cultural developme nt conditioned thereby" (Marx and Engels 1973, 19). He had predicted that with the increasing contradictions in advanced capitalist modes of production there wou ld be (given necessary subjective conditions) a transformation to socialisn1, which in U1rn, with its own contra- dictions, would transfonn into communism. In capitalistn, principles of justice would center on notions of fonnal equality. In other words, an equal measure (formal equality) would be applied to unique (different) people. (Note how the uniqueness of people is subordinated under a comm.on measure.) In socialistn, "the narrow horizons of bourgeois thought" would still prevail, but the principles ofjustice would be more genuinely applied, with two qualifica- tions: "he who does not work, neither shall he eat" and "an equal amount of produc ts for an equal an1ount of labour" (Lenin 1949_, 150). H ere the residues

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32 SOCIAL JUSTICE

satisfaction it brings." Thus justice exists where "the services exchanged have an equivalent social value" (1964b, 382~ 383).Just exchange is only where inher- ent inequalities (iJe., differences in n1uscular dexterity, temperatnent, etc.) are reflected in the exchange.

Even though justice might seem to flow from the consensual contract, for Durkheim it is only where equivalent exchange of social value exists that a genuine, just contract is exercised. In hie; words, "If one class of society is obliged, in order to live, to take any pr·ice for its services, while another can abstain frorn such action thanks to resources at its disposal which, however, are not necessarily due to any social superiority, the second has an unjust advan- tage over the frrst in Ia·w" (1964b, 384).

He went on to say that it was with the "abnorn1al forms" of the division of labor where the greatest disparity in justice exists, even though, ironically, consensual contracts might be the rnost respected in law. Abnormal forms are occasions wher-e external conditions (i.e., advantage of inheritance) offSet the natural accommodative relations developing to the ever-growing division of labor. One fonn, anotnic, is where a gr-eat incongruence exists between these adjustments. Here there are too few norms that are adequately assuring equi- librium in a society. A second forn1 is where the rules and laws themselves constrain workers into roles that are not fitting to them. Here too n1.any rules abound that constrain individual developn1ent. A third forrn is where wor-kers are deprived of fi.1lfilling activity. In the abnonnal forn1s, there nTay indeed be justice based on mutual consent; however, the just contract, the contract of equity, ·will be subordinate to it.

Under anon1ic conditions, labor IS divided to such an extent that little solidarity remains between and an1ong workers. Durkhei1n (1984, 291-308) explains that this results in both the reduced power of·workers to revolt for bet- ter wages and a reduction in the ability of producers to gauge the need for goods on the tnarket. Forced divisions of labor also undermine solidarity. This occurs when social forces, such as unequal distribution of access, prevent workers from choosing labor and instead force them. into "vork for which they are not fit. Labor is not divided by natural aptitude but by predetennined statuses such as inherited wealth. This weakens the collective conscience and produces .. subver- sive tendencies" (315). Similarly, the deprivation offulfiUingwork through over- specialization weakens solidarity and the rnoral order. One can easily recognize these abnorn1al fonns in our current social structure. Take a mornent to consider these three abnormal forn1s and identity then1 within your own life or commu- nity. We will revisit these forms and their impact on justice in later chapters.

lV!iJ~" Weber (1864-1921)

With little dispute, the ·writings of Max Weber have been among the greatest influences on a large variety of topics in the social sciences. In Economy

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Distributive Justice

of the equality principle would still exist. In the higher fonns, the c01nmunist n1ode of production, principles of justice vvould revolve around "frorn each according to his abilities, to each according to his needs" (Lenin 1949, 152-163; Pashukanis 1980, 324). Thus justice principles wou1d revolve around acknowledging differences: differences in abilities, differences in needs. 1

TowARD A SociAl. jusTICE MonEL

A ccording to David Miller, to develop a social justice understanding "is to discover the underlying principles that people use when they judge some aspect of their society to be just or unjust" (1999, .ix). In his three ideal types of modes of human re.lationships--solidaristic c01nrnunity, instnunental asso- ciation, and citizenship-particular forms of justice are connected, respec- tively, to need, desert, and equality. These are abstractions, developed rnore for illmnination than for literally explicating specific moments . However~ by look- ing at a particular mode ofhmnan relationship we can then see what detnands of justice people make on one another.

For Durkheirn, the deve loprnent fron1 less division of labor to more entailed a c hange fron1 rnechanical to organic bonds of solidarity; collective to individual liability; and trotn the blood covenant to the consensual contract. For W eber, the development fron1 precapitalist to capitalist society entailed a change trom collective to individual responsibility and a change from status to contract (e.g., the abstract b earer ofrights, the juridic subject). For Marx~ people enter definite relations in a particular rnode of production that are independ- ent oftheir will. For Pashukanis, the e1nergence ofthe abstract bearer of rights follovvs developments in conunodity exchange in a co1npetitive marketplace. In late twentieth-century capitalisrn, however, there was a full-c:ircle return to status. One's location in a particular recogniz ed group in law detern1ined one's rights, obligations, and notions of justice.

Miller, on the other hand, vvants to orient us to tnore general, abstract principles of social justice, along vvith the probletnatic nature of modes of human relationships that are their supports. He also wants to indicate how tensions and conflicts exist when people find themselves in more than one mode of hun'lan relationship. He does not dispute the three previous classic theorists; in fact, one can see that he derives a considerable amount of sub- stance from thetn. His first mode is solidaristic con1munity, in which there is a sharing of a com1non eth os and identity in a relatively stable group. It en tails much direct interaction with the other, with the consequ ent generation of 1nutual understanding and trust. Thus people find tbetnselves in solidarity due to a shared c ulture, kinship, or acquaintanceship. In premodern society soli- daristic comn1unity was found in the village comnutnity. In Jnodern society it is more prevalently found in the family. This fonn of solid arity is found less in other forms of association-for example, work organizations. Within

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Distributive Justice 33

and Society, a two-volume work published after his death, Weber's key thoughts on law were developed as they related to contractual justice. It was here that he developed his notion of the forms of law and legal thought and sense of justice that inhere within each.

Weber was concerned with the various instiU1tions that developed with the rise of capitalistn. H e distnissed uni-causal explanations, particularly exclu sively econo rnic explanations; rather, he always advocated a n1ulti-causal approach. The central force for capital:ist development was rationalization. He used this term in different ways. At tirnes he saw rationalization to mean the systematic cod- ification oflaws. At other times he saw it to mean increasing differentiation and coordination toward greater efficiency or productivity. This developn1ent was due to a coincidence of historical forces: "two forces operating side by side ... on the one hand, capitalisn1 interested in strictly formal law and legal procedure ... on the other hand, the rationalisrn of officialdorn in absolutist states led to the interest in codified systems and in homogeneous law" (Hunt 1978, 1 09) .

Market forces have an interest in fonnulating law in a forma l manner because these forrnalities assure predictability, accountability, and rnanageabil- ity. Consider the legal specialties that have developed around these forn1alities; the variety of financial regulations alone abound. The state, on the other hand, has interest not only in n1arket forces but also in broader social forces and must atternpt to balance those with rationality and consistency.The state can claim equality before the law only if laws are consistent and based on rational rea- soning. The common interests of the market and the state produce formal rational legal systems.

Alongside this developn1ent \.Vas a historical transformation in the fonns of contract. In earlier times, in societies organized on the basis of clans, kin- ships, and household conununities, the fraternal contract was premium. Any exchange with another n1eant a dramatic change in relations. The other would now become ''somebody's child, father, wife, brother, master, slave, kin, comrade- in-arms, protector, dient, follower, vassal, subject, friend, or, quite generally, comrade" (Weber 1978, 672). Here, too, there existed collective responsibiJjty; individual liability was not the dominant outlook. Kin were responsible for contracts rnad e by family members, and the con1munity assured the tulfilln1ent of contracts.

In latter societies, especially those n1arked by the capitalist 1node of pro- duction, the notion of collective responsibility dissipated and notions of indi- vidual liability becarne dominant.This was rnarkedly so with the emergence of the rnarket economy, commerce, and the con1petitive rnarketplace.Weber (1958) expertly describes the ilnpact ofPuritanism on individualism. His text draws out the relationship between religion and economic developrnent and docu- rnents the intportance of both on social life and social understandings. The

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solidaristic communities, justice is defined in tenns of need. "Each rnernber is expected to contribute to relieving the needs of others in proportion to abil- ity, the extent of liability depending upon how close the ties of community are in each case" (Miller 1999, 27). 2 This understanding is retniniscent of Marx's expectations for justice within a communistic society (fronf each according to his ability, to each according to his need).

The second m.ode of relationship is instnun.ental association. Central here is utilitarianism: people relate to each other in tenus of various goals, aims, and purposes that can be ideally realized working with others (27). The principle of justice that en1erges is that of desert. "Each person comes to the association as a free agent with a set of skills and talents that he deploys to advance its goals.Justice is done when he receives back by way ofreward an equivalent to the contribution he makes" (28).A person's desert is related to the goals ofthe particular association. The criterion of desert, then, can be operationalized as how much one contributes to the goals and hovv much one is rewarded. Implicit is the notion of proportionality: greater contributions should receive greater revvards. This ruode is consistent with Weber's forn1al rationality, out- lined earlier in tllis section.

The third rnode ofhuman relationships is citizenship. Hurnan beings relate with others not only in tenns of solidarity and/ or instrumental activity but also as bearers of abstract rights (e.g., expectations and obligations defined in lavv) that identify their status as citizens (30). Here the principle ofjustice would be formal equality. "Each person enjoys the same set of liberties and rights, rights to personal protection, political participation, and the various services that the political comtnunity provides for its m .embers" (30).Thus citizenship is a status. It encornpasses, for example, the notion ofthe reasonable n1an in law.

Each of the three ideal types often overlap as people find thetnselves in more than one forn1 of association within particular relationships. These over- lapping relations produce tensions and cries of"unjust" as an unexpected stan- dard ofjustice is assmned and practiced. In other words, given the more fluid nature of associations-solidaristic, instrumental, and equa lity-a given situa- tion may suggest one principle ofjustice being rnore operative than another.

Consider the solidaristic form of justice experienced within families. Members rely upon each other and support each other becam;e of their kinship bond reflecting Miller's first mode. However, the genesis of a fatni ly in modern Western society is typically a marital contract that formalizes relational expec- tations. This contract is entered into by two free agents with the conunon. goal of tnutual benefit. The contract reflects Miller's second mode of hun1an rela- tionships. One can see the overlap with the third mode in the rights and ben- efits provided by the cotnnlunity for married couples because of their status (in the United States, this .is reflected in access to healthcare and retirement benefits, an1ong other things).

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34 SOCIAL jUSTICE

religious traditions that privileged the individual and individual responsibility -were especially itnportant to the developtnent of capitalistn, which also privi- leges individual responsibility and action over the collective_ It seems consis- tent that if one is to stand alone before God for judgment in the afterlife that one should be held accountable individually for judgn1ent before the court or in contractual relations.

The capitalist economy detnanded a plethora ofrnomentary exchanges, and the purposive contract was discovered for specific transactions. So too was the juridic subject in law, the assutned rational, logical, and self-directing subject, ·which is recognized in the notion of the reasonable n1an in law. A juridic sub- ject was an abstract bearer of rights . Now a new notion of the subject and new notions of responsibility connected with the forces of rationalization, the rise of capitalisrn, central states and their need for coordinating adtninistration , as well as the detnands of the competitive marketplace. Individual responsibility was elevated to a central place in law and in principles of contractual justice.

Weber, however, was skeptical about genuine justice in the forms of con- tractual justice that tnay exist ... The result of contractu al freedom, then, is in the first place the opening of the opportunity to use, by the clever utilization of property ownership in the market, these resources ·without legal restraints as a n1eans for the achievement of power over others. The parties interested in the power in the n1arket thus are also interested in such a legal order" (Weber 1978, 73). Thus, the increase of contractual justice does not necessarily bring greater :freedotn or fairness. Contracts clearly formalize and articulate expectations within the agreernent. However, this does not guarantee that the expectations or the agreement are just_ N "either do contracts guarantee that the conditions under which the agreen1ent was made are just. Formal qualities of law are not the basis of understanding justice unless one accepts legal forn1alisn1 as the determ.ining n1odel for rendering justice_ After all is said and done, it is the given property distribution in a society that will determine overall freedotn, level of coercion, and justice. It is the supporting role of ideology in the forn1 of legiti1nizing principles by which subjects are pacified into accepting the fonu of contract in existence. According to Weber, "every highly privileged group develops the myth of its natural ... superiority" (953). Most of the time, the negatively privileged group accepts the given order because of the exis- tence of legitimation principles abound in societaL-wide ideology_

Contractual justice, then, is reflected in the type of legal order and form of legal thought that is dominant. "Fonna.l rationality," or the formal legal sys- tem most prevalent in capitalist fonns of society, privileges the juridic subject and forms of legal thought identified as syllogistic reasoning and deductive logic. Given core axioms, such as constitutional rights, then , decisions and j us- tice can be arrived at by a mechanical, linea r, and logical analysis to a conclu- sion in law. Said in another -vvay, we start with a tn.ajor premise, apply it to the

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Herein lies the dilemma: with two people in conflict drawing from differ- ent modes of relations, which criterion is relevant and operative? Miller sug- gests we develop a "pluralistic theory of justice" that would be contextually sensitive, where the three criteria would be "held in consistent balance with one another" (41). This is increasingly apparent with issues of globalism and nmlticulturalisn1, where a particular criterion might clash "vith another (246). 3

.RECOGNITION OR REDISTRIBUTION?

In Redistribution or Recognition? Nancy Fraser and Alex Honneth (2003) debate the appropriate relation of recognition to redistribution in developing a distributive justice fra1nework. Honneth advocates a recognition approach rooted in Hegelian philosophy (the struggle for recognition), where distribu- tion is seen as being derived from recognition. Fraser, on the other hand, sees the two as co-fundarnental and mutually irreducible dimensions of justice. In other words, neither category is privileged, but work together.

Honneth argues that identity politics-the struggle across the globe for recognition of unique ways of being and of unique cultures-provides a suit- able starting point in understanding a bona fide conceptualization ofjustice. In short, son1e conception of the good life n1ust be incorporated in principles of distributive justice prior to understanding adequate notion of distribution or redistribution of resources. His critique of Fraser is that her Atnerican bias concerning the politics of identity based on race, ethnicity, and sexual differ- ence cannot be a tnodel for the experience of Europeans, especially those from France, Great Britain, and Gennany, where identity politics do not play the same donlinant role as in the United States. For Honneth, a recognition- based justice n1ust incorporate smne founding principles. He identifies three elen1ents of recognition: love, law, and achievernent. Care and love, if not pro- vided early in a child's upbringing, will produce dysfunctional forms of recog- nition of the other. Recognition and respect for the autonomy of the other in the forn1 of the equality principle must be assured in law in terms of specific rights. And persons must be able to attain social esteem by their individual achieven1ent. He also entertains the possibility of a fourth founding principle that recognizes individuals as members of cultural com1nunities, but after sorne analysis he restates his position that Jove~ legal equality, and merit/ achieve1nent should be the elements of justice based on recognition. These would ultimately contribute to individualization and to social inclusion. People would not only undergo continuous self=-actualization/realization, but would also be respected in a society with th eir unique differences. In short, one recognizes the other \ivhile also being recognized by the other. It is only when each of us recognizes the other that self-realization may be enhanced .

Nancy Fraser sees things differently. She wants to focus on the distribution of resources as well as clain1s to recognition, especially those oriented around

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nlinor premise or facts of a case, and d e ductively, in a step-by-step fashion, arrive at a conclusion in law. In other words, the right to equal access to education, for exarnple, is protected tlu-ough a linear legal process that considers whether equal access is being denied, concludes that it is being denied, and finds that this denial is unjust. Formal rationality is focused more on a fonn of freedom that works within the specific constraints posed by law; it looks at equ ality of opportunity, formal equality; it does not entertain equality of outcorne nor how people are distributed in a political economy. Other forms of justice may compete.

In substantive rationality, outside principles, criteria, ethics, and notions are ernployed-"outside" n1eaning outside the formally recognized principles in law. Thus affirmative action is based on substantive rationality. So to is com- parable ·worth, which concerns challenging work practices whereby the only distinguislling factor is the position title, where the actua l fun c tioning is the same. Doing justice entails drawing from principles that are not necessarily recognized in the official body of Jaws. Substantive rationality rnay disallow for the equal access of smne groups to educational facilities if it is found that principles or ethics outside of the law are being violated. For exarnple, the Reserve Officers' Training Corps (ROTC) was banned frorn several college catnpuses during the Vietnam war era when students protested that the exclu- sion of homosexuals from the military violated their stated can1pus principles of inclusion. This reliance on principles of inclusion as outlined in the carn- puses' equity statements was used to exclude the R.OTC based on the mili- tary's exclusionary practices. The campus equity staten1ents were outside the torn1al law yet were utilized as a basis to invoke justice.

Another form of law and justice is substantive irrationality. Here some outside principle is invoked, and little in the form oflong- tern1 rationalization is sought in lavv. Irrationality is use d here not as ajudgtnent of appropriateness, but as a descriptor to distinguish this forrn of law and justice fron1 that which requires rationalization . A jury de c ision-making process is a case in point. At the end of the trial phase the jurors are instructed by the judge what charge and criteria to en1ploy in determining guilt or innocence. This is torma1 ration- ality. However. once the jurors return to the jury room for deliberation it is n1ore often a mixture of formal rationality and substantive irrationality, with the latter playing a more dominant role. In other words, it is the unique world- views and asstunpt1ons of various people and ethnic and cultural groups that may play a greater role in the determination as to ·what is just. This notion exists in many societies that use khadi justice, where so1ne religious figure is the sole determiner of each infraction and its resolution. Therefore, no ration- alization or formal code is available. An outsider knows neither the principle being invoked nor its particular application in a concrete situ ation. A benevo- lent dictator, for example, would claim a nuanced understanding of his subject's desires and would distribute resources accordingly.

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race, sex, ethnicity, and gender differences. She states from the outset that recognition does not need to go into specifying the constitutive elem.ents, but rather must be seen as a matter ofjustice in itself. Thus if a person is denied sta- tus as an equal in society because of institutionalized forms of denial, then that is unjust in itself. There must be parity of participation, she tells us, and institu- tional changes that foster it. In short, on the recognition element ofjustice, it is not, Fraser tells us, based on self-realization but on jm;tice itself. This, however, is only one element of justice. The other deals with redistribution of resources. According to Fraser, "a theory of justice must reach beyond culnual value pat- terns to exarnine the structure of capitalisrr1. It n1ust ask whether econotnic tnechanisms that are relatively decoupled front structures of pre stige and that operate in a relatively autonomous way impede parity of participation in social life" (35).The two principles, one based on recognition, the other based on dis- tribution, are connected. She traces these principles as already implicit in "folk paradigms of justice;' or our everyday intuitive understandings.

She tells us her project is rooted in pragmatis1n and discourse ethics- pragmatics because she privileges contexts; discourse ethics because she does not found her principles on foundational principles (a fonn of essentialism). By providing parity in participation, jnstice emerges out of the process and each recognizes in ongoing discourse the other as equal. This has some affinities with Habermas's call for an ideal speech sin1ation and the potential to establish con- sensus. In other words, specific components ofjustice would emerge out of this state of affairs, and one does not in advance have to describe what they in fact are, as in Honneth's essential notions of care/love, legal equality, and merit/ achieve1nent. Fraser also tells us that globalism has intensified differences and inequalities, and hence the salience of a two-dimensional notion of justice is necessary. Her approach does not need an ethical ditnension ofjustice, the good life that Honneth sees as an essential component; rather, participants in parity ·will decide what the good life is in pragmatic encounters, in discourse in social institutions respecting parity of participation. Honneth's response would be that, yes, Habennas's initiative toward linguistically n1ediated interaction (dis- course ethics) is in1portant, but it is unclear from ·where the eventual insights will come, whether from discourse itself or fro1n language's formal properties as a language (247). He fi1rther argues that not all is linguistic, not all gets directly con1municated in formal language; some forms of recognition simply exist in physical gestures. In his view, any participatory parity includes i1nplicit ethical principles ofthe good. Parity does not exist in a vacuum. Fraser argues that we need not state at the outset foundational elements of justice. Instead, we should let the1n e1nerge in context, pragmatically, in discourse where each person in the encounter has institutional assurances ofparity.

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The fourth fonn of justice according to Weber is formal irrationality. Here s01ne fonnal principles ofjustice might be invoked, but only the author- ity knows how to interpret these principles. This appears in decision 1naking that relies on an oracle, n1agic, or revelation. Justice is concretely determined by the decision-nL<"lking authority but is applied differently to individtL'1ls.

Contractual justice entails the interplay of principles of rationalization and principles offonnality. Rationalization means applying some criterion to all like cases; formality n1eans making use of criteria that are internal to the legal system (nuking use of external criteria would make it low in forn1ality or substantive).A decision is seen as fair ·where societal 1nembers generally accept the fonn of law, legal thought, and the sense ofjustice itnbedded within it. They see it as legitimate, as an order worthy of their orientation and behavior. Nevertheless, for Weber justice is ultimately an issue to be determined by the unequal distribution of property in a society.

Karl Marx (1818-1883)

Along with Durkhein1 and Weber, Marx stands out as one of the most influential thinkers in the social sciences. He was not interested_, directly, in the form of law. But issues of justice were central to his writings. All phenomena, including law, ideology, and conceptions of justice were ultimately connected with a particular tnode of production in existence. For exan1ple, he writes that a contract "is just ·whenever it corresponds, is appropriate, to the n1ode of pro- duction. It is unjust whenever it contradicts that mode. Slavery on the basis of capitalist production is unjust; likewise fraud in the quality of commodities" (Cain and Hunt 1979, 138).

Marx's guiding principle in historical and political econonuc investiga- tions was his focus on the mode of production.

In the social production of their existence, people inevitably enter into definite relations, ·which are independent of their will, namely relations of production appropriate to a given stage in the developtnent of their nlate- rial forces ofproduction.The totality ofthese relations ofproduction con- stitutes the economic structure of society, the real foundations, on which arises a legal and political superstructure and to which correspond definite terms of social consciousness. The tnode of production of n1aterial life conditions the general process of social, political and intellectual life. It is not the consciousness of people that detennines their existence, but their social existence that determines the ir consciousness. (Marx 1967, 20-21)

In this view, the base is the e c onomic system, the superstructure is the totality of belief, consciousness, law, ideology, ethic, principles of justice, etc . The base is said to determine the superstructure . The four pure fonns of the n1odes of production described by Marx ·were slavery, feudalisin, capitalistn,

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Distributive Justice 37

and con1munisn1. Socialisn1 was a category between capitalism and comnlu- nism. Within the base, two elements existed: (1) the forces of production, or n1.eans ot- production, which include technology, natural resources, and skills and knowledge, and (2) relations of production, or socioeconomic relations, which involve how people actually interact in a patterned way. It is said that the forces of production shape the relations of production. Given an assernbly line, for exarnple, specific relations develop. Given the internal com.bustion engine, particular relations of production develop. When forces and relations of production are in relative accord, there is equilibritun, or stasis. When forces of production change too rapidly, there is a gap, a contradiction between these and the relations of production, called an antithesis.

Within this contra.diction change will emerge, either peacefully or. where the contradiction<; are the most extreme, by outright revolution. This is the notion of the dialectical rnaterialism: thesis-antithesis-thesis-antithesis. It is the .tnotor of historical change. Marx also says that when these contradic- tions are extrerne, the mode of production itself changes into new forms. These are objective conditions. These contradictions in the rnode of production, such as overproduction and/ or econonuc crises, are the concrete conditions for rev- olution. However, Marx was also adamant regarding the subjective conditions for revolution . These conditions are related to class consciousness, or the knowledge held by th e revolutionary class (or the working class under capi- talisrn) that something can be done to change the social conditions and that they/we are the class to produce that change. In other words, it is necessary to recognize not only a '"class in itself" but also a "class for itself." Hallas (2003) recounts Trotsky's description of the development of a revolutionary con- sciousness within the working class. This consciousness requires experience in class struggle. Lenin (1989) suggested that ·work within labor unions and gen- eral political ·work with and for the interests of the working class are ways to experience that struggle. Marx intonned our unde rstanding of the objective and subjective conditions for revolutionary change.

Notions of justice must be seen in tenus of the n1ode of production in existence. What is seen as fair is specitlc to a particular tnode of production . People are offered definite relations that are independent of their wills. Con- sciousness, then, follows one's existence. In feudalisn1, for example, the serf or peasant in a hierarchical fonn of society is subordinate to the lord. One's rights, privileges, and notions of justness follows one's position in the hierarchy and does not necessarily follow as one moves to another village or town.

The issue of what constitutes justice can be interpreted in at least four ways in .M aocist analysis: instrumental Marxist, structural Ivlarxist, structural interpellationist, and constitutive Marxist. Instnunental Marxist analysis argues that those with economic power also have political power. In fact, in the tnore rigid fonn of instrumental Marxist analysis this group is a capitalist ruling class

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38 SOCIAL jUSTICE

that is hom.ogeneous in its interests to maxitnize profit and is conspiratorial in its functioning to do so (see Quinney 1974). The state, law, criminal justice system, and notions of justice are then organized to promote the interest of the ruling class by way of ideological state apparatuses (i.e., school , fatnily, media). Justice, in short, is what the ruling class defines fr01n its self-interested position to 1naxin1ize profit (surplus value). In titnes of increasing contradic- tion or social crises, this n1aximization of profit can also be interpreted as nlax- itnization of exploitation (declining wages/increasing work hours). Depending on the level of class-consciousness, this may be interpreted as unjust and be followed by social c hange. However, under stable conditions the maxi1nization of profit will be seen as just within a capitalist structure.

Structural Marxists see things differently. Notions of law and justice emerge from comtnodity exchange (Pashukanis 1980). Marx, in the first 1.00 pages of Capital, explains the notion of cmnrnodity fetishisn1 where the con- creteness of th.ings exchanged, their use-values, are transformed behind people's backs into abstractions, exchange values. Vashukanis, who appeared after the 1917 Itussian R.evolution , rose to preenunence in the new dictator- ship of the proletariat directing the socialist state. He developed, from Marx's commodity exchange logic, the notion of legal fetishisrn.

To develop the cornrnodity exchange perspective, we start ·with t\vo commodity owners entering a con1petitive marketplace. Through the constant exchange oftheir comn1odities something mysterious happens, with profound effects. Initially, a cotnn1odity has use value-it corresponds to two differences that inhere within it: differences in the an1ount of labor needed in its produc- tion; differences in the concrete needs to which it corresponds. However, with the constant exchange of commodities, new appearances (phenomenal forms) emerge. That is, the two cornmodities are brought within an equation of equivalence: t'wo pounds of butter equals four gallons of milk; two of this equaJs four of that. This is a mathe1natical ratio. It is rnoney that becornes the universal equivalent for value. Henceforth, the use value recedes from con- sciousness, replaced with its ratio of exchange. We now have exchange value. The concreteness ofthings, the uniqueness ofthings, is now transformed into a quantitative relation. Differences disappear. So, too, Pashukanis tells us, does the unique, concrete person in capitalisn1.

With the constant exchange of conm1odities, certain appearances take form to which lawyers give idealized expression (e.g., verbal forrn): first, the appearance of free will as each exchanger assumes it of the other; second, the appearance of equality as each at the instant oftransfer assumes it ofthe other; and third, proprietorship interests, as each asswues the other is the owner of the comrnodity being exchanged. Thus the forn1al notions of freedom, equal- ity, and proprietorship interests emerge in this instance. The subject L'> now transfonned, much Jike the conunodity into an exchange value, the juridic