Philosophers and non-philosophers alike are familiar with the standard list of goods such as basic liberties, wealth and income, and job and educational opportunities around which debates over social justice are often conducted. Indeed it is largely because of the familiarity of this list that we need to take care not to jump to the conclusion that this particular list of goods, which undoubtedly plays a role in defining social justice,
106 See, Nozick, Anarchy, State and Utopia, and, Steiner, H., An Essay on Rights, (Oxford: Blackwell, 1994).
107 Although I shall leave this complication to one side it is worth noting Jeremy Waldron’s argument that, in fact, Nozick’s theory should be interpreted as a duty-based rather than a right-based theory, since the ‘strict deontology of side-constraints’ favoured by Nozick only makes sense as part of a
110 See, Cohen, Rescuing, esp. chap.7; G. A. Cohen, 'Fairness and Legitimacy in Justice, And: Does Option Luck Ever Preserve Justice?' in S. de Wijze, M. H. Kramer and I. Carter (eds.), Hillel Steiner and the Anatomy of Justice: Themes and Challenges, (Abingdon: Routledge, 2009), 3-21.
111 One obvious exception to the claim that the deep disagreement over the concept of justice itself is
‘largely unacknowledged’ is G. A. Cohen’s book, Rescuing Justice and Equality. Most of the second half of Cohen’s book is devoted to explaining the difference between the concept of justice as he understands it and the concept of justice as understood by Rawls. For further debate over the arguments put forward by Cohen see, Williams, 'Justice, Incentives and Constructivism'; R. Arneson, 'Justice is not Equality', Ratio, 21 (4) (2008), 371-391; T. Pogge, 'Cohen to the Rescue!' Ratio, 21 (4) (2008), 454-475; J. Quong, ‘Justice Beyond Equality’, Social Theory and Practice, 32 (2) (2010), 315-340; P. Tomlin, 'Survey Article: Internal Doubts about Cohen's Rescue of Justice', Journal of Political Philosophy, 18 (2) (2010), 228-247.
also plays a role in defining distributive justice. As I mentioned in section II, above, the concept of distributive justice is much broader than the concept of social justice, and addresses many questions in addition to the social justice-specific question of how the benefits and burdens of social interaction should be shared between the members of a particular state. What theorists of distributive justice who take the currency view are looking for is a ‘common currency’ that will explain not only why the familiar list of social justice-related goods looks the way it does but also what links this list of goods to the other goods that are deemed to be relevant to questions of distributive justice in other spheres, from the pressing matter of global distributive justice, to more esoteric concerns over, say, the just distribution of resources on (real or hypothetical) desert islands.
If such a common currency does exist then, clearly, in light of the heterogeneity of spheres in which questions about ‘what people are due’ can arise, it will have to be very general and thus highly abstract in nature. One potential problem with this is that when we think about what the common currency might be, the list of possible candidates itself is so thoroughly heterogeneous that making a reasoned choice is likely to be very difficult.112 But let’s assume that we can overcome this problem. Let’s assume that we conclude that the common currency of justice is some kind of resourcist metric.
It is important to realise just how bold a conclusion this is. We are not saying that the resourcist metric we favour represents the most plausible interpretation of the currency of justice. What we are saying is that unless one is talking in terms of our favoured resource metric one is not saying anything meaningful about justice at all. From such a perspective a debate between a capability theorist and a welfarist would look very peculiar – it would seem as if both participants, though claiming to be talking about justice, were in fact talking about some completely different concept (or perhaps just talking nonsense). This does not seem like the right conclusion. It is hard to believe that all but one of the parties involved in the currency debate (welfarists, resourcists, capability theorists, etc.) have collectively succumbed to some kind of deep conceptual
112 Well known options include various types of neutral resource metrics and measures of well-being, to opportunity for well-being, access to advantage, and capabilities to function in various ways.
confusion – thinking they are talking about justice when they are actually talking about something else, or nothing at all. More likely, we might think, is that there simply is no single currency that can be linked with the concept of justice by definition. The explanation for why all these different conceptions of the currency of justice are conceptions of justice, rather than something else, must lie elsewhere.
Before rushing to this conclusion, however, it is instructive to note that whatever the precise details of the views held by resourcists, welfarists, and capability theorists, one thing is certain: they share a commitment to the idea that what justice is ultimately concerned with is the distribution of goods (and bads) that are of deep and perhaps fundamental importance for people’s lives. This is obviously a rather vague notion, but the essential idea is that, insofar as justice is concerned with the distribution of goods and bads that appear to have only trivial significance for people’s lives, it is only because the distribution of these things affects the distribution of a more fundamental and hence much more significant thing. This agreement between the proponents of various different currencies on the ‘fundamentality’ of the currency of justice should give us a clue as to how we might yet be able to identify the concept of justice with one currency in particular. What we are looking for is some kind of common currency that is capable of representing, on the one hand, the disparate content of the goods picked out as basic by the various substantive views already mentioned and, on the other hand, the shared characteristics of these disparate goods, namely, their fundamental importance to people’s lives.
With these two criteria in mind, two obvious candidates immediately suggest themselves: rights and duties.113 The highly general and abstract nature of rights and duties means that these ideas can be plausibly assigned a central role within almost any conceivable conception of justice; it is perfectly natural, for instance, to talk about a right to a certain share of resources or a certain level of well-being, or a duty to support
113 In order to avoid unnecessary complications I shall not differentiate between right-based and duty-based approaches. The two concepts are obviously very closely related, and whether one thinks that rights are basic and that duties are derived from them, or that duties are basic and that rights are derivative, what is important is that both concepts satisfy the two desiderata of a common currency that I mentioned above.
certain kinds of institutions or to provide others with certain capabilities to function.
Moreover, rights and duties seem particularly well suited to the task of representing the fundamental significance of justice-related goods: they (usually) apply to everyone, and, as Jeremy Waldron notes about rights in particular, they have ‘often been characterised in terms of their strength, their urgency, their peremptory character, even their conclusiveness in political argument’.114
According to right/duty-based interpretation of the concept of justice, then, questions concerning the content, scope, and justification of our rights and duties do not simply have a bearing on problems of justice, they define these problems as problems of justice. Notice, once again, what a bold claim this is. The proponent of the right/duty-based version of the currency view is effectively saying that if a putative theory of ‘justice’ can conceivably be framed in such a way that it makes no essential reference to the concepts of rights and duties, then that theory is not in fact a theory of justice at all but a theory of something else (or of nothing in particular). Now of course it is true that most, if not all, theories of justice refer at some point to the concepts of rights and duties. But on closer inspection it is clear that these concepts rarely play the essential, foundational role in these theories that the proponent of the right/duty-based version of the currency view claims they must if these theories are to be classed as genuine theories of justice. The reason for this is that most theories that invoke the concepts of rights and duties distinguish rights and duties of justice from other kinds of moral rights and duties, and in order to explain this distinction they typically refer to one of the other three views of justice (or some combination of them). What this shows is that these theories are not really examples of the currency view after all, since what defines the content of justice in these theories is nothing to do with rights and duties and all to do with the explanation of what is special about rights and duties of justice.115
It is simple enough to demonstrate the truth of the claim made in the previous paragraph. Consider, for example, theories of justice that claim that what determines
114 Waldron, 'Introduction', p.14.
115 There are some important exceptions to this general claim that I deal with below.
whether a right is a right of justice as opposed to a non-justice-based moral right is whether the interest which generates the putative right is sufficiently strong to warrant holding someone else to be under an enforceable duty to satisfy or protect that interest.116 Such a theory is clearly an example of the coercion view of justice, rather than a right/duty-based version of the currency view of justice, because the explanation for why the right in question is a right of justice is provided by the fact that something so important is at stake that it justifies one or more people exercising coercion over another person or group of persons in order to satisfy or protect it.
Much the same can be said about theories of justice that invoke the concepts of rights and duties but which are more accurately described as versions of the institutional view. Thus, for example, an institutionalist might say that rights and duties of justice can only be created by institutions. This gives rights and duties a central place in the theory, but, again, it is only a derivative rather than a foundational role. What is really doing the work in the argument – the thing that explains why the rights and duties created by institutions are rights and duties of justice – is the power that institutions have to create special kinds of entitlements and allocate special kinds of requirements; rights and duties are simply useful labels for these things – they play no necessary or fundamental role in the theory.117
Finally, consider the fairness view. It is perfectly open to the proponent of the fairness view to stipulate that what each person has a right to is what he or she would have under a perfectly fair distribution. It might even be possible to say that other people have a duty (though not necessarily an enforceable one) to supply right-holders with what they would have under a perfectly fair distribution. But again, it is clear that the fundamental concept at work here is the idea of a perfectly fair distribution; the existence and normative force of any rights and duties that are created as a result is
116 An example of someone who appears to agree with this view is Miller, National Responsibility and Global Justice, p.248.
117 For a argument against the classic, Benthamite version of the institutionalist claim that rights can only be created by institutions, see, D. Lyons, 'Utility and Rights', in J. Waldron (ed.), Theories of Rights, (Oxford: Oxford University Press, 1984), 110-136.
ultimately to be explained by referring back to the thing which defines these rights and duties as rights and duties of justice, namely, the ideal of a perfectly fair distribution.
It seems clear, then, that even though most theories of justice make use of the concepts of rights and duties at some point, the normative role these concepts play is a derivative rather than a foundational one, and so they cannot be appealed to in order to explain what defines these theories as theories of justice. At least, this is usually the case, for as I indicated above (see fn.146), there are a few important exceptions to this general claim. The exceptions are those theories which purport to tell us what justice is, purely through an analysis of the concept of a right. Such theories are genuinely right-based, because nothing other than the bare concept of a right is appealed to in delineating the contours of any particular conception of justice. According to such theories, rights are truly foundational.
The clearest and best-known example of such a genuinely right-based theory of justice is Hillel Steiner’s theory of ‘left-libertarianism’. Steiner claims that ‘the elementary particles of justice are rights. Rights are the items which are created and parcelled out by justice principles’.118 On its own, of course, this claim is merely stipulative. But Steiner goes on to justify it through a complex analysis of the nature of rights and their exercise. Noting that rights-claims are typically invoked in ‘adversarial circumstances’ in which people make conflicting claims to the same piece of ‘action-space’ (i.e. the physical components of time and space that are necessary for any action), Steiner attempts to demonstrate that principled resolutions of these conflicts are only available if the rights being invoked are ‘compossible’ (i.e. jointly possible).
This powerful compossibility constraint, combined with several other constraints grounded directly in the formal features of rights themselves, generates a lexically-prime rule (one which trumps all other moral considerations) for the distribution of rights, which in turn determines the allocation of spheres of negative liberty within which individuals are left to pursue their (possibly immoral) ends free from the interference of
118 Steiner, An Essay on Rights, p.2.
other.119 This is not the place to explain the complexities of Steiner’s view in more detail or to assess its overall plausibility. But, as this very brief summary makes clear, Steiner’s theory represents an ingenious attempt to generate a substantive theory of justice from the pure concept of a right. And, as such, it presents a serious challenge to my rejection of the currency view of justice. For that rejection, up to now, has been based on the claim that most theories of justice that include claims about rights and duties only invoke these concepts in a derivative rather than a foundational sense, and that they therefore presuppose one of the other three views of justice. Steiner’s theory, in contrast, allocates an explicitly foundational role to rights, and in doing so it clearly escapes my general objection.
Ideally I would like to be able to respond to Steiner’s argument by showing that, ultimately, his right-based theory also presupposes one of the other three views of justice. Unfortunately I do not have such a response – and I’m not sure there is one.
Fortunately, however, this lack of a strong response to the challenge posed by Steiner’s theory does not preclude a somewhat weaker one – one that, I believe, will rescue (at least temporarily) my attempt to reject the rights-based view as a distinct view of justice.
The weaker response is this: while Steiner’s view may not, strictly speaking, presuppose one of the other three views of justice, it is nevertheless possible to redescribe it in terms of one of the other three views (namely, the coercion view), thus vindicating the general rejection of the currency view as a distinct interpretation of the concept of justice.
My grounds for making this weaker response are a number of quotes in which Steiner makes it clear that his theory of rights-based justice is extensionally equivalent to a justified-coercion theory of justice. Consider, for example, Steiner’s claim that: ‘one freedom which my rights do assign to me (or my agents) is the freedom to do acts enforcing the correlatively dutiful conduct of others…My right assigns to me the pure negative freedom to curtail your pure negative freedom’.120 Alternatively, consider Steiner’s argument (expressed in agreement with Kant) that:
119 This summary of Steiner’s view is largely borrowed from the summary Steiner himself gives.
Steiner, An Essay on Rights, pp.1-5.
120 Steiner, An Essay on Rights, p.74.
…a set of rights is a prescribed interpersonal distribution of freedom…[and] a rights-violator, by engrossing some of his victim’s allotted freedom and therefore (in a compossible set of rights) exceeding his own, alters that distribution…[and] one is thus licensed by that same prescription to use force against the violator, i.e. to diminish his freedom, in order to restore that distribution.121
In these quotes, and at numerous other points in his work, Steiner makes it clear that the implication, if not the intention, of his theory of justice is to tell us when the exercise of coercion is justified and when it is unjustified. And this means that Steiner’s view does not in fact create a barrier to my goal of rejecting the currency view as a distinct view of justice.
I have argued that insofar as the currency view of justice has any plausibility at all, the only credible candidate currencies are rights and duties. However, most theories that invoke the concepts of rights and duties distinguish rights and duties of justice from other kinds of rights and duties, and in order to explain this distinction they typically refer to one of the other three views of justice (or some combination of them). This shows that they are not really examples of the currency view after all. Hillel Steiner’s theory demonstrates that not all right/duty-based versions of the currency view presuppose one of the other three views. But Steiner’s view nevertheless entails one of these three views, and such entailment is all that is required in order to vindicate the proposed rejection of the currency view as a distinct view of justice. Ideally I would like to rule out in principle the possibility of a right/duty-based version of the currency view that neither presupposes nor entails the coercion, institutional, or fairness view of justice. But since this would be a task of infinite duration I shall have to settle for the contingent conclusion offered here.