Dimensión IV: Participación Definida como:
Módulo 3 Comprar, hacer, aprender y vender Permite integrar el trabajo que se ha desarrollado desde los diferentes talleres pre-vocacionales que brinda la Fundación, con la
The concept of distributive justice or social justice is a moral, political and philosophical ideal concerned with fairness or equitable sharing in the allocation of resources, benefits and burdens in society. This directly affects laws and their implementation, the expectations of peoples and the well-being of society. It suggests that society as a whole has a moral duty to bring about just distributions of the benefits and burdens of economic and social life.
It is clear from the writing of the major contributors to the debate about justice that it has been influenced by the developed, liberal and capitalist Western democracies in which the writers have lived. The debate has not been informed by the detailed consideration of the situation of indigenous peoples or minorities although, as will be seen, more recent writers have considered the situation of pluralist societies. This means that the major theories need to be reconsidered in the context of indigenous peoples and their rights. Briefly, contemporary liberal philosophers such as Rawls, Nozick and Dworkin emphasize conceptions of justice based on just political arrangements and equality in individual freedom compatible with the rights of others. Whilst they promote liberal society as an ideal form, Amartya Sen argues for a framework to assess justice in society from the perspective of actual opportunities for the exercise of freedom by people in societies which are not confined to one form such as a liberal society. Liberal ideas are also criticised by communitarians such as Walzer and Sandel as failing to recognize the role of the community in shaping understandings about individuals in society. Collective
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rights are defended by Walzer, Kymlicka and Newman as significant elements in contemporary society.1
On the other hand, welfare-based conceptions of justice such as utilitarianism deny any natural right in property and insist instead that government must produce, distribute and regulate property to achieve results defined by some specified function of the happiness or welfare of individuals.2 Another group of theories seeks to achieve material equality in outcome of goods, opportunities and other resources.3 But, over time, the result is likely to undermine the form of equality that the schemes originally secured, especially equality of welfare and material equality. Welfarism, for instance, ignores the claim that people deserve certain economic benefits in light of their economic actions. Welfare schemes often do not consider that people will make private choices and, over time, the equality initially targeted will be undermined.4
The following part identifies the main elements in achieving distributive justice in society. A Respect for the Liberties of Persons and the Position of Communities
Most of the contemporary philosophers writing on justice place significant emphasis on the point that every person in society is equal and free. This is the core element that dictates the rights-based approach which is the dominant strand in the discourse of justice. The main proponents including Rawls, Dworkin and Nozick retain their focus on the individual position in society. Walzer, on the other hand, argues for respect for both individuals and communities.
The principles of equality and respect of both persons and communities are important in the discussion of the resource rights of indigenous peoples. Their position and interests are often regarded as inferior to the dominant majority groups in society. As their land rights are generally communal, the focus on individual rights and resistance to communal
1 Michael Walzer, Spheres of Justice: A Defence of Pluralism & Equality (Basil Blackwell, 1983);
Will Kymlicka, Multicultural Citizenship (Clarendon Press, 1995); Dwight G Newman, 'Theorizing Collective Indigenous Rights' (2006–2007) 31 American Indian Law Review 273; Dwight G Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups
(Hart Publishing, 2011).
2 For comparison between the conceptions of classical utilitarianism as traditional welfare theory,
neoclassical welfare theory and the new Contractarian approach: Hahnel, Robin & Albert, Michael, Quiet Revolution in Welfare Economics (Princeton University Press, 1990), Chapter 1.
3 See, eg, Kenneth Cauthen, The Passion for Equality (Rowman & Littlefield, 1987). Cauthen
argued that equality for outcome is common goods which people both contribute to and receive benefits from and therefore should be enjoyed in common. He suggests that equality for outcome was a fundamental basis for both equality of opportunity as well as equality of outcome.
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rights led to significant setbacks for the indigenous peoples in asserting their communal rights.
1 Rawls’ and Dworkin’s Propositions
Derived from his hypothetical device of the ‘original position’,5 John Rawls suggested that every person must be treated as a citizen free and equal having moral capacity capable of being a fully cooperating member of society. This follows from the first principle in his theory of justice that stresses equality in the distribution of primary goods in society.6 Self-respect is one of the primary goods apart from basic rights and liberties,
income and wealth.7
The basic and equal liberties and fair equality of opportunity are to be secured within the setting of background institutions as the essentials of the constitutional structure.8 The distinction between regulation and restriction of liberty must be noted to avoid interfering with the effectiveness of the system.9 Persons are at liberty to do something when they are free from certain constraints and protected from interference by other persons, including the government.10 Rawls listed the basic and equal liberties as including
5 Rawls proposed that the appropriate perspective from which to choose among competing
conceptions or principles of justice is a hypothetical device of social contract or choice situation in which contractors are constrained in their knowledge, motivations and tasks in specific ways which he called the ‘veil of ignorance’ or the ‘original position’. Rawls speculated that people in the ‘original position’ negotiating behind the ‘veil of ignorance’ will agree to a kind of political arrangement which is fair to all participants, that is, in his view, principles guaranteeing equal basic liberties and equality of opportunity, and a principle that permitted inequalities only if they made the people who are worst off as well off as possible: John Rawls, A Theory of Justice
(Oxford University Press, 1999).
6 These guiding ideas of justice as fairness were expressed in its two principles of justice:
(a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all;
(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle) (John Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001), 42-43).
7 Ibid, 58. 8 Ibid, 43, 46.
9 Rawls, above n 5, 178. 10 Ibid, 177-8.
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freedom of thought and liberty of conscience,11 political liberties,12 the rights and liberties or ‘the social bases of self-respect’;13 and the rights and liberties covered by the rule of law.14
Dworkin also held that government is responsible for treating people as equals and with respect in all of its decisions that govern the property scheme it creates and enforces.15 This follows from the principle that individuals are responsible for their decisions and actions but not for other circumstances beyond their control including race, religion, social status and gender. This is the responsibility principle. The factors beyond their control are morally arbitrary and should not affect the distribution of resources in society.16 Therefore, he assumed that people’s wealth should differ as they make different choices about investment and consumption. This supposes that if people begin with the same wealth and other resources, then equality is preserved through market transactions.
2 Amartya Sen’s Capability Approach
The protection of liberties and rights, and equal opportunities open to all will result in inequality if people have no capabilities to realize or benefit from them. Amartya Sen proposed that a system and an institution should be assessed in terms of what people are capable of, both in terms of real or substantive freedoms and the opportunity to enjoy the freedom (capability approach).17 He argued that focusing on freedom is a more accurate way of dealing with what people really value and introduces fewer distortions. It emphasizes functional capabilities as substantive freedoms that people have reason to value instead of focusing on utility or access to resources. Sen listed five distinct types of freedom significant in advancing the general capacity of a person. They are: political freedom; economic facilities; social opportunities; transparency guarantees; and
11Liberty of conscience dictates that persons are ‘free to pursue their moral, philosophical, or
religious interests without legal restrictions requiring them to engage or not to engage in any particular form of religious or other practice, and when other men have a legal duty not to interfere’. Ibid, 177.
12 Ibid, 194-200, the contents of the political liberties are explained to include rights to fair
representation, right to free and fair election, freedom of speech and assembly, liberty to form political association and rights to equal access to public office.
13 Rawls, above n 5, 59 [17.2]: ‘Those aspects of basic institutions normally essential of citizens
are to have a lively sense of their worth as persons and to be able to advance their ends with self- confidence.’
14 Ibid, 44.
15 Dworkin, above n 4, 296.
16 Ronald Dworkin, 'What is Equality? Part 2: Equality of Resources' (1981) 10(4) Philosophy & Public Affairs 283.
17 This capability approach, considered as a pragmatic approach to realizing human rights, has
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protective security. These freedoms, he argued, have ‘remarkable empirical connections’ that link to each other which help to promote the others.18
In relation to indigenous groups who have different kinds of lives that they have reason to value, justice requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group even though these values and institutions may not readily fall under the frameworks of existing state structures.19 Sen’s proposition helps to bridge the ideals of liberal theories of justice to the practical realities. Rawls’ theory may be an ideal unachievable in reality. Sen invited peoples to engage in public reasoning in pursuit of justice by comparing the impact of particular policies and reflecting on the way in which things are done in the name of impartiality and fairness.20
3 The Proposition for Collective Rights: Liberal Individualism vs Collectivism
The contemporary debates on distributive justice are generally limited to the protection of individual rights. The rights of a community, or ‘collective entitlement directly vested in collective entities’21 have been less recognized. This has created barriers to group claims including those made by indigenous and minority peoples. This position has been criticised by scholars including Sandel and Walzer in the 1980s. More recently, Amartya Sen has also criticised individual rights as not adequately recognizing the role of the community in shaping the understanding of justice and the common good, such as moral values, shared understandings and the public interest. Fictions, such as the original position and social contract, detach individuals from their social context that form beliefs and understandings about what justice is.22
Sandel asserted that individuals in reality are ‘community-constitutive’ rather than ‘pure’ and ‘unadulterated’ as proposed in the Rawlsian conception. He called for philosophy to give ‘fuller expression to the claim of citizenship and community than [philosophical] liberalism allows’.23 He argued that persons as we know them are always ‘situated’ or ‘embedded’ in a social context. They are ‘encumbered’ by ties of economy. We cannot
18 See, Amartya Sen, Development as Freedom (Oxford University Press, 1999). 19 Susan Dodds, 'Justice and Indigenous Land Rights' (1998) 41(2) Inquiry 187, 187.
20 Amartya Sen, The Idea of Justice (The Belknap Press of Harvard University Press, 2009). 21 Miodrag Jovanović, 'Are There Universal Collective Rights?' (2010) 11(1) Human Rights
Review 17.
22 Sen, above n 20; Walzer, above n 1; Michael J. Sandel, Liberalism and the Limits of Justice
(Cambridge University Press, 1982).
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conceive of our personhood without reference to our roles as citizens and as participants in a common life.24
In a similar way, Michael Walzer called for treatment of justice that is ‘socially and historically situated rather than abstract and detached’25 from community values which he viewed as inherent in human life.26 Walzer believed that justice underlies ‘shared understandings of human needs and capabilities within different communities’27 rather than conceptions based on abstract notions, such as the original position, which are not real.28 The ‘shared understanding’ is based on assumptions that they are ‘basic, transculturally applicable moral principles upon which we can legitimately rely precisely because they are, in fact, widely shared.’29 The values seen from this shared understanding include the liberal values of life and liberty which are universal and not confined to liberalism only.
Amartya Sen has also identified the need to take a more comparative approach by looking holistically at social realizations which are not only the products of institutions but also of other factors including human and social behaviour. He warned against seeing people in terms of one dominant ‘identity’ to the exclusion of others which he saw as the tendency in the present intellectual climate.30 He sought to offer a discourse about conceptions of justice which is open to plural voices rather than confined to establishment institutions and a homogenous liberal society with an ideal of justice with a view detached from its social reality.31
24 Ibid.
25 Glen Stassen, 'Michael Walzer's Situated Justice' (1994) 22(2) The Journal of Religous Ethics
375, 375.
26 Walzer, above n 1, 29-30. 27 Walzer stated that,
By virtue of what characteristics are we one another’s equal? One characteristic above all is central to my argument. We are (all of us) culture-producing creatures; we make and inhabit meaningful worlds. Since there is no way to rank and order these worlds with regard to their understanding of social goods, we do justice to actual men and women by respecting their particular creations. And they claim justice, and resist tyranny, by insisting on the meaning of social goods among themselves. Justice is rooted in the distinct understanding of places, honors, jobs, things of all sorts, that constitute a shared way of life. To override those understandings is (always) to act unjustly. (Ibid, 314; Stassen, above n 25, 397).
28 Walzer, above n 1, 82-3.
29 Ibid, 378. Stassen argued against critics that justice of the Walzer kind is of communitarian particularism, ie, defined and determined by the shared understanding of each particular community. See, eg, Joshua Cohen, ‘Review of Sphere of Justice, by Michael Walzer’ (1986) 83(8) The Journal of Philosophy 457-68; Ronald Dworkin, Review of Sphere of Justice, by Michael Walzer 1983 30(6) 4-6, cited in Stassen, above 25, 378.
30 Sen, above n 20, 247. 31Ibid, xi-xiii. In his words:
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(a) Reconciliation of Individuals and Collective Rights
The avoidance of the subject of collective rights in philosophical discussions of justice may have influenced the position of collective rights in international human rights law and, specifically, the rights of indigenous peoples to land and resources. The indigenous peoples’ rights are mainly collective in nature. Although the rights of indigenous peoples as well as minority peoples are recognized as collective rights in the relevant international instruments, tension between the two contexts of rights remains. The growing recognition of indigenous peoples’ rights at the domestic level has often been confined to individual rights of the members of the group whereas for many indigenous communities the right to occupy their ancestral land is a precondition to survival as a people. But very few jurisdictions recognize the rights to own land, for instance, as a collective right. Jarboe described the refusal of the US Supreme Court to recognize the collective rights of a Native American nation as an unjust imposition of Western views of individual rights on tribal land ownership.32
An aspect of the tension between individual and collective rights is over how collective rights can be addressed. Kymlicka suggested that group rights are seen as asserting the moral primacy of a group against the individual which is a tool to restrict the freedom of individual members.33
Sen maintained that his capability approach is also applicable to groups. He observed that there is no particular analytical reason for excluding groups ‘from the discourse on justice or injustice in their respective societies, or in the world’.34
Kymlicka asserted that some ‘group differentiated rights’ are not merely compatible with individual rights, but are required by the very same principles of freedom and equality. His proposition for group differentiated rights, that is, rights held by members of a group on the basis of their group membership,35 provides a foundation for group rights within liberalism to which his proposition is confined.
Individual human beings with their various plural identities, multiple affiliations and diverse associations are quintessentially social creatures with different types of societal interactions. Proposals to see a person merely as a member of one social group tend to be based on an inadequate understanding of the breadth and complexity of any society in the world. (247)
32 Melanie Riccobene Jarboe, 'Collective Rights to Indigenous Land in Carcieri v Salazar' (2010)
30(2) Boston College Third World Law Journal 395, 395.
33 Kymlicka, above n 1, 2. See also, Ronald Dworkin, Taking Rights Seriously (Harvard University
Press, 1977), 193-7. Dworkin indicates resistance against collective rights arguing that any individual rights trump collective rights.
34 Sen, above n 20, 246. 35 Kymlicka, above n 1, 35.
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He argued that such a right can, in various ways, provide members of a group with protection against threats posed by the economic and political powers of the wider society. Rights applicable to groups, including land rights and representation rights, can serve as external protections in particular circumstances, such as to address minority indigenous groups whose rights are often disadvantaged by their limited political power. Kymlicka suggested that, since the disadvantages suffered by national minorities are not a result of their own free choices, group differentiated rights can be a legitimate, and sometimes morally required, means to address them.36
The fundamental interests that individuals have in leading a good life require the freedom to live in accordance with their own beliefs about what gives value to life, and to be able to question and revise those beliefs.37 When individuals are deprived of their cultures (which are constituted by shared language, values, institutions and practices) not only does their autonomy suffer, but they are also subject to a morally arbitrary disadvantage compared to those who can live and work in their own languages and cultures.38 Liberal principles of freedom and equality require, in some circumstances, group differentiated rights to protect individuals against the potential loss of their cultures.39
But Kymlicka’s concept is still confined to individual rights available to members of a