Processes that Produce Distributions

My argument derives in the first place from Karl Marx's criticism of liberal conceptions of justice. Claims of distributive fairness, in his opinion, frequently presuppose institutions of private property, wage labor, and credit, when these might come into question for a more critical conception of justice. In the Critique of the Gotha Program, Marx applies this point to proposals for socialist institutions.

In Marx's view, the relations of production should be the primary focus of concern, because they condition the distribution of producer and consumer goods. The relations of production have a distributive element—namely, that some people own capital resources while most do not, and therefore most must work for wages in order to live. Relations of production, however, refer primarily to the processes of investment, production, marketing, technological invention, and so on, through which owners accumulate profit by exploiting the labor of some and marginalizing others.

In the twenty-first century some radical social movements, such as feminist, queer, anti-racist, and disability movements, have argued that the social structures producing injustices should be understood as plural, and not limited to relations of production. The sort of argument that Marx made, then, needs to be extended to a wider range of basic social structural phenomena. More often than not, when we ask about the fair distribution of goods, income, jobs, costs, etc., we presuppose an existing set of structural relationships whose rules of property, authority and decision making power, assignment of tasks, positions of legal or social authority, or everyday conventions already determine much about the parameters within which distributions can occur. A critical theory of justice, then, should be equipped to evaluate these social structures themselves, and not only the distributional alternatives they circumscribe or that presuppose them.

We need not look only to the socialist tradition to find criticism of focus on distribution in theorizing justice. Robert Nozick's libertarian theory criticizes Rawls for focusing on the evaluation of single time patterns of the distribution of goods among persons. This focus deflects from the real issues of justice, according to Nozick, which concern whether these distributive patterns have come about from a process and history in which people received their due, or whether the process involved moral wrongs.⁸

Nozick himself, as well as other libertarians, finds only one criterion by which the justice of the process should be evaluated: whether the process has involved voluntary agreements between people at every stage. If the processes have involved force or fraud, then the resulting patterns should be altered in a manner that compensates for this injustice. To the extent that a distributive pattern results from transactions that are uncoerced and honest, they must be considered just, no matter how unequal different persons' holdings.

We need not accept that voluntary agreement is the single criterion for evaluating the justice of processes producing distributive patterns in order to accept the point that a theory of justice should give a central place to evaluation of those social processes. I myself reject Nozick's theory. By regarding the social processes that produce distributions as a series of individual transactions between individuals, Nozick himself allows no place for an account and evaluation of a large-scale set of background conditions to transactions that is the basic structure of society. As Rawls himself points out in defending the need for state institutions to regulate economic processes, a pattern can be the result of a series and aggregate of voluntary agreements with structural consequences that no one intended, but which endanger the lives, health and freedom of some.⁹

Basing a conception of justice only on the question of whether outcomes are brought about by voluntary agreement refuses to treat such large social structures produced by the confluence of microprocesses as coming under judgments of justice.

In spite of these disagreements, the point I draw from Nozick is one I think he shares with Marx: the processes that produce distributive patterns are at least as important as the patterns themselves for making judgments of justice, as well as for understanding how to remedy injustice. Taking the basic structure as the subject of justice can bring attention to these processes. To do so, however, we will require a more developed account of what the basic structure includes and how structural processes produce injustices than Rawls's theory offers. In the following sections I offer three features of the basic structure of modern societies that raise issues of justice additional to distribution of resources or positions.

Economic Justice and the Division of Labor

Rawls considers the social division of labor to be a general aspect of the basic structure of society. Indeed, a division of labor is a fundamental aspect of a system of social cooperation. It is generally beneficial for people to develop their different and complementary talents and specialize in different tasks, thus depending on one another to meet their needs and satisfy their wants in a more complete and efficient way than they could on their own.¹⁰

There are at least two interpretations one can give to how the social division of labor raises issues of justice. One sees the question as distributive in form, the other does not. While both have moral weight, I think that the second interpretation raises more basic questions about the justice of institutional organization and social structure.

Under the first interpretation, issues of justice in the division of labor concern what sort of people do what sort of work; they concern the pattern of the distribution of persons or kinds of persons among positions and kinds of positions. If we observe a pattern, for example, in which menial and servant labor is done primarily by people of color, and people of color are hardly ever among those with high paid professional positions, then this raises issues about whether people of color are unjustly limited to certain occupations.¹¹

Rawls addresses issues of justice concerning the division of labor primarily with the principle of fair equality of opportunity. Justice requires the absence of caste or status difference that would bar persons from pursuing the occupation of their choice in a fair competition for positions. The procedures for allocating positions should not discriminate by race, gender, family origin, or other ascriptive characteristics, and the education system should enable everyone to develop his or her skills and qualifications as they wish.

I certainly endorse a principle of equal opportunity. Restricting concern with issues of justice in the division of labor to the question of how positions are allocated and whether some people's opportunity to compete for them is unfairly limited, however, locates justice in the division of labor at a rather superficial level.¹²

Focus on the issue of how persons or categories of persons are distributed among occupations takes as given the definition of occupations themselves and their relations.

Prior to the question of what people ought to fill which occupation is the question of how the occupations themselves should be defined. This is the second interpretation of the question of justice in the division of labor. How shall we evaluate morally the structure of the occupational distinctions, the definition of tasks within them, and the relations among people occupying differing positions within a production, distribution, or service enterprise? Is it just, for example, that an aspect of the basic structure of society consists in an occupational pyramid where the more plentiful positions at the bottom are relatively menial, repetitive, and subordinate to the decisions of others, while the few positions at the top carry broad autonomy, decision making power, and prestige?

Let me illustrate these two different ways of considering issues of justice in the division of labor by reference to gender justice. A division of labor persists as part of the basic structure of most societies in the world, which assumes that women devote primary energies to taking care of children and other dependent family members, while ideally men are the primary income generators for a family. Feminists argue that this division of labor is unjust, because it limits women's opportunities to develop other capacities and achieve public recognition, and often makes them vulnerable to poverty.

Theorists such as Susan Moller Okin and Eva Feder Kittay have argued that Rawls's theory of justice is inadequate because he fails to address issues of the gender division of labor in the family.¹³

In Justice as Fairness: A Restatement, Rawls internalizes this criticism. Proper application of principles of equal liberty and a principle of fair equality of opportunity, he says, should suffice to secure equality and independence for women.¹⁴ Moreover, to the extent that a source of women's inequality lies “in their greater share in the bearing, nurturing, and caring for children in the traditional division of labor in the family, steps need to be taken either to equalize their share or to compensate them for it”.¹⁵ Rawls follows Okin in proposing that stay-at-home wives should have an equal legal share in their husbands' earnings.

This argument conceptualizes issues of justice and the gender division of labor in distributive terms. Given the structural division between paid employment and unpaid family work, then either women and men should share the family work equally, or the partner who performs unpaid work should be financially compensated by the partner who earns wages. This interpretation of gender justice leaves unquestioned, however, the structural division between private domestic care work and public wage and salaried work.¹⁶

This more fundamental structural issue of the sexual division of labor has far-reaching implications for the worth of different kinds of labor, employer and labor market expectations of the shape and length of the working day, and the form and status of sex segregation and gender stereotyping in more public paid occupations. Arguably as long as basic institutions treat care work as primarily the private responsibility of families, social policy will pay insufficient attention to it. Accepting that this aspect of the basic structure of most societies in the world today underlies many gender injustices, of course, does not produce proposals for what should be done to alter this structural division of labor. That is a complex question with many possible answers. The point is that theorists, policy makers, and citizens committed to furthering gender justice have devoted too little thought to the problem.¹⁷

To take another example, socialist politics historically has questioned the modern social division of labor which constructs some occupations as relatively menial, repetitive, and subordinate to the decisions of others on the one hand, and positions of expertise that carry broad autonomy and decision-making responsibility on the other hand. This position suggests that we think of this structure as itself a matter of justice, even apart from the issue of whether the opportunities for the more autonomous, skilled, and responsible forms of work tend to be restricted to members of certain groups. It may be that there are good arguments for the justice of such a division of labor between the unskilled and the skilled, the menial and the professional. With an equal opportunity distributive understanding of justice in the division of labor, however, the question itself does not arise.

Justice in Decision Making

Another set of issues that tends to be ignored when theorists formulate issues of justice in distributive terms is decision-making power.¹⁸

Some people occupy social positions that give them the right to make institutional decisions, either alone or in small groups. These often have major consequences for others, for example, in reinforcing structured processes that create or maintain privilege and disadvantage. Economic decisions are paramount here. Persons who control investment portfolios or who are major officers for large corporations and financial institutions have a great deal of power over the investment of capital resources produced by the cooperation of many people. They have the power to decide whether production facilities will be shut down in one location and established or expanded in another, and to decide whether capital will be invested in environmentally sound or in damaging productive activities. Indeed, they have the power to decide whether capital will be invested in speculative trading with little relation to the provision of goods or services, or in activities that will enhance the quality of life for many people.

In calling attention to how justice in decision-making power is not primarily a distributive issue, moreover, I have more than issues of resource and capital use in mind. Every social institution includes procedures for deciding ends and means, and usually authorizes occupants of specific positions to make and implement various kinds of decisions. Often a small number of people make decisions that affect many participants in an institution and outside it. Educational institutions constitute decision-making power about curriculum and student performance evaluation, for example, which affect students, teachers, and parents in significant and often far-reaching ways. Religious institutions constitute power of decision making about organization, membership, form of worship, and resource use.

These examples raise a major and obvious issue of justice, connected to issues of the division of labor: is it right for corporate, educational, religious or other institutions to be structured so that there are elites with major decision-making power and others who work with or use the services of the institutions, yet who have little or no power over the institution's policies, including over those that affect their own actions? Another way to put the issue of justice at stake here is: does justice require that the decision-making power of institutions be organized more democratically? Is there a legitimate distinction to be made between “public” institutions or governments, whose decision-making power ought to be democratically organized, and other institutions, where it need not or should not be?

I agree with Ian Shapiro, among others, that justice calls for a presumption of democratic decision-making for all institutions, not only those institutions that we now associate with states or governments. Although it is possible to justify departure from a principle of democratic governance on a number of grounds, we ought to assume democratic decision making structure as a prime facie principle of the governance of all institutions.¹⁹

To be sure, these claims are contestable, and my purpose here is not primarily to defend them. Rather, I bring them up to suggest that Rawls's theory of justice does not have a sufficiently broad and deep understanding of basic structure to provide guidance in answering them.

Insofar as equal political liberty is one of Rawls's major concerns, his theory does address issues of justice in decision-making power. Like most other theorists, however, Rawls assumes a distinction between public institutions and private institutions, and political liberties apply only to the former. Justice in decision-making power, then, refers to an equal right to vote for political decision makers, together with liberties of speech, assembly, and so on, which enable citizens publicly to express their political opinions. Rawls also argues that large inequalities of wealth unacceptably interfere with this political equality, and thus that tax and inheritance policy should limit such inequalities.

These are laudable positions, but they leave untouched another set of issues: decision-making power in non-state institutions of production and finance. These arguably are more fundamental either than issues of the concentration of wealth or the means of political influence, because capital investment decisions condition significantly the distribution of wealth and the extent to which needs and wants of society's members will be met in a fair and equitable manner.

In Justice as Fairness: A Restatement, Rawls raises an objection to his theory along these lines. Having argued for property-owning democracy as the best model of basic structural relations implied by justice as fairness, Rawls admits that the theory does not consider issues of decision making power in the workplace or over the general course of the economy. He says that he will not address the issue except to say that a system of worker-managed firms is consistent with the two principles of justice.²⁰

This response seems to admit that his theory, which concentrates on issues of individual liberty and the distribution of wealth and income, is not equipped to support or refute claims about injustice in decision-making structures.

Normativity

In my earlier writing on this subject, I suggested that a third category of issues of justice, which are not well captured by a distributive paradigm, have to do with “culture”. I had in mind various ways that the interactive habits, conventions, and everyday meanings associated with persons and kinds of persons that appear in literature, popular magazines, film, television, and other media, work to make some persons or behaviors more valuable than others. The devaluation or stigmatization of some persons because of their gender position, their sexuality, their putative “race,” and so on, certainly contributes to structural processes that disadvantage some people and advantage others.²¹

Recent literature in political theory and multiculturalism uses the term culture in a rather different way, namely, to refer primarily to differences between groups based on ethnicity, nationality, or religion.²²

Because of its easily shifting meanings, then, I have concluded that the term “culture” is too vague to locate a set of issues of justice not reducible to distribution which nevertheless help produce and reproduce basic structures that affect people's life chances.

Despite its wide usage, I think that the concept of “recognition” also slides between several meanings, the most common of which do not focus on the issues of stigmatization and exclusion to which I want to call attention. First, sometimes groups claim that they suffer injustice because others in the society fail or refuse to recognize their members as expressing a distinctive form of living that ought to have equal status with that of dominant groups. A politics of recognition, second, sometime involves claims for self-government, either in the form of a separate state or an autonomous region. A third meaning of recognition as it appears in the literature does refer more to stigma and exclusion than to positive claims for acknowledgement of forms of group expression or to claims of self-governance. For my purposes here, I prefer not to invoke the term recognition altogether, because it is ambiguous. Rather I will refer to the issue of justice that concerns me with the term “normalization”; I derive my understanding the the process of normalization from the work of theorists such as Michel Foucault, Judith Butler, and Michael Warner.²³

Some people claim that they suffer injustice because others identify them as belonging to groups which dominant ideologies construct as abnormal, problematically different, or despicable. Especially when dominant norms and expectations either encourage discrimination, avoidance, segregation, harassment, or violence, or fail to discourage these harms, those who suffer them are not only victims of individual morally blameworthy actions, but also suffer systematic injustice. Issues of justice such as these concern the way institutions, discourses, and practices distinguish the normal and the deviant, and the privilege they accord to persons or attributes understood as normal. While processes of normalization have important and sometimes far reaching distributive implications, they are not themselves distributions.²⁴

The situation of people with disabilities illustrates the problems of normalization most starkly. Most theorists of justice treat disability under the distributive paradigm. Having a disability implies that a person will not be able to compete for income and power as effectively as others, and that therefore the “handicapped,” as this literature often calls them, should receive compensation for their disadvantage.²⁵

What such an approach to justice for people with disabilities does not do, however, is inquire about the basic structures that position some people as not “competitive.” These philosophers seem to share with many others the assumption that lacking specific bodily or mental functionings automatically makes a person less competent than those that have them.

Scholars and advocates of people with disabilities question the assumption that disability is a category of “natural” misfortune and less competence. Whether a person is “disabled,” they argue, depends far less on that person's attributes and capacities than on the extent to which the infrastructure, rules, and interactive expectations of the society make it difficult for some people to develop and exercise capacities. Having little or no use of one's legs, to take an obvious example, constitutes a “handicap” only in a society whose basic structures include frequent stairs, curbs, narrow doorways, or machines operated with feet.²⁶

Normalization consists in a set of social processes that elevate the experience and capacities of some social segments into standards used to judge everyone. In this process the attributes, comportments, or ways of life that are “normal,” in the sense of exhibited by a majority or by dominant social segments, come also to have the connotation of being “best”. To the extent that other people do not fit or fail to measure up to these standards because of their bodily capacities, group-specific socialized habits and comportments, or cultural membership or way of life, they tend to suffer stigmatization and disadvantage. The assumptions carried by many institutional rules and practices often operate to enforce and reinforce these norms that stigmatize and disadvantage. These norms often make a large class of people deviant, and the disadvantages they suffer as a result usually affect central aspects of their lives.

In explicating his notion that his principles of justice pertains to a fair system of social cooperation, Rawls explicitly assumes that free and equal citizens are “normal and fully cooperating members of society over a complete life.” The theory of justice assumes people who are normal in this sense, and puts to the side “temporary disabilities and also permanent disabilities or mental disorders so severe as to prevent people from being cooperating members of society in the usual sense.”²⁷

Eva Feder Kittay argues against this “setting aside” of disability; instead, a theory of justice should begin from the facts of dependency and vulnerability of which some disability is an example.²⁸ While I agree with her, here I want to call attention to how Rawls's bracketing gesture misses an element of basic structural processes. The “usual sense” in which people are cooperating members of society harbors for many societies both a prejudice that people with differing physical or mental impairments cannot contribute to the same degree as others, and often presupposes contingent physical structures and social expectations that make some people appear less capable than they would appear within altered structures and expectations.

I have lingered on the example of people with disabilities to illustrate normalization as a process of injustice produced by social structures. Many other persons suffer injustice through normalization processes, such as many women, people who deviate from heterosexual norms, or persons marked as racially different.

Many workplaces continue to assume that workers' lives conform to traditionally masculine lifestyle norms. The policies and practices of employers, that is, continue to assume that workers do not themselves juggle family care responsibilities with their work day. Employers often put workers at a disadvantage for for taking time off due to family illness or refusing long hours because they have family responsibilities. This is an oppressive normalization of particular life situations even when some men suffer disadvantage because of it.

Many workplaces and other public institutions such as schools, furthermore, assume that the bodies populating them never menstruate, are pregnant, or lactate. They fail to accommodate to the particular needs of women at certain times, sometimes causing them embarrassment, physical discomfort, or worse.²⁹

People who are perceived as racially or ethnically different by dominant groups, to take a different example, often find themselves regarded as deviant in relation to conventions of politeness, articulateness, or the appearance of honesty and trustworthiness, which matter a great deal for the attainment of positions of authority or significant responsibility. In North America and Europe being dark skinned, in combination with carrying a habitus from the streets of the segregated neighborhoods in which one has grown up, mark a person in the eyes of some others as malign or incompetent. Such stigmatization does much to impede a person's freedom to pursue their plans of life.

From a Rawlsian perspective, one might say that these processes of normalization conflict with a principle of equal opportunity, and they do. The point in noticing them separately is to see that the unfair discriminations they produce derive not from the explicit prejudices of particular individuals or from public policies of explicit distinction and exclusion, but rather from widespread but relatively unnoticed assumptions embedded in institutional rules, the material infrastructure of social action, and everyday habits of comportment and interaction. These important elements in the basic structures of society call for social theorizing like that of Charles Tilly³⁰

or Pierre Bourdieu to supplement Rawls's normative political philosophy.