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From criminal justice to moral philosophy: reply to Dragan Milovanic.

It is a pleasure to respond in this journal to Dragon Milovanovic's review of Justice and Modern Moral Philosophy because his is a thoughtful and sympathetic (though, of course, critical) reading, and because the moral theory formulated and defended in the book is deeply shaped by my own experience as a philosopher coming to terms with the U.S. criminal-justice system. On the way to considering the specific comments in Milovanovic's review, I will sketch the lines that lead from criminal justice to the theory of moral justice that I defend.

A striking feature of criminal justice is that, when considered strictly as behaviors, the actions characteristic of a criminal-justice system are like the actions that that system exists to combat. As behaviors, execution is like murder, imprisonment is like kidnaping, fines are like theft, and so on. What all these behaviors share is the use of force against people's wills. Now, assuming that a just criminal-justice system is possible, it follows that the use of force against people's wills is sometimes just and sometimes unjust. What makes the difference lies elsewhere than in the behavior itself. But where?

My view is that the difference between unjust and just exercises of force hinges on whose interests the exercise of force serves. A just criminal-justice system exercises force in the interests of all citizens -- even the citizens against whom the force is used. By contrast, a criminal uses force to serve his own interests at the expense of his victim's. Consider the difference between the force exercised by a rapist against his victim and the force exercised by the criminal-justice system against the rapist. The rapist uses force to serve his own interests at the expense of his victim's. The criminal-justice system uses force to prohibit or punish rape, in which case the use of force is in everyone's interest, because everyone -- including rapists -- wants not to be raped. The same can be said about all the noncontroversial crimes, such as murder and assault, theft and fraud. When force is used to prohibit or punish such acts, the target of the force is being constrained according to principles that serve everyone's interests, including the target's.

This gives us a way of understanding the point of the charge -- leveled during the tumultuous 1960s by James Baldwin and others -- that the police in the ghetto are an "occupying army." The difference between an occupying army and a legitimate criminal-justice system lies not so much in the actions they perform, as in the interests they serve. An occupying army serves the interests of the occupying nation, not those of the occupied nation. It uses force to keep the occupied people in a position of subservience to the occupiers. It uses force against them much in the way criminals do, to serve their own interests rather than the interests of all alike. If the police are an occupying army, they exercise might, not right.

This analysis also explains why the "victimless crimes" have a shakier moral status than obviously predatory acts such as murder or rape. If, for instance, prostitution is truly a victimless crime, then we cannot confidently say that prohibiting or punishing it serves everyone's interests. Rather, we have reason to suspect that it serves only the interests of those who think that prostitution is sinful or evil. Then it seems that the criminal-justice system is using force to serve this group's interest at the expense of those who think that prostitution is morally neutral or morally optional and effectively to impose one group's beliefs about virtue on another group.

We stand, then, in a much different position to the punished murderer than to the punished prostitute. In the case of the murderer, we can confidently say that we are not simply imposing the beliefs of the "anti-murder majority" on the "pro-murder minority." Rather, we are acting in everyone's interest, since even murderers don't want to be murdered. In the case of the prostitute, by contrast, it seems that we are doing something arguably closer to what criminals do, imposing force to serve some people's interests at the expense of others.

In Justice and Modern Moral Philosophy, I generalize this lesson into a theory of the difference between just and unjust exercises of force, between right and mere might. Just are the exercises of force that serve the interests of all alike, unjust are those that serve the interests of some at the expense of the interests of others. Yet, and this is crucial, the determination of what is in the interests of everyone alike is a theoretical problem -- it is not a matter of asking actual people what they think serves their interests. This is so for two reasons: first, due to ignorance or ideology, people may be mistaken about what their interests are. Since the moral question hinges on people's real -- not their merely perceived -- interests, we must ask the theoretical question of what serves everyone's real interests, even if they are mistaken about them.

Second, people's real interests at a given moment may themselves be a function of previous injustice. Once a robber has given me the choice between my money or my life, it serves my real interest to hand over my money. Yet this is hardly a just solution, since paying for my life with my money only became my real interest because of the robber is unjust imposition of force upon me. Or, more broadly, within a capitalist society, the interests of workers may be to earn as high a wage as possible; but, if we think that capitalism itself is unjust -- in giving a few people exclusive control of the means of production -- then simply paying workers higher wages will not necessarily be just, since the workers ought not to be in the position in which that has become their real interest in the first place. Consequently, our question cannot be about whether arrangements satisfy the real interests people have in an actual socioeconomic system, but whether the system itself serves the interests that people have as human beings, independent of any particular system.

The upshot of these observations is that asking what is in everyone's interests is posing a theoretical question that looks beneath the interests that people (perhaps mistakenly) think they have and those that they (perhaps unjustly) do have in their current position in the social and economic system. To ask whether an exercise of force is just, then, we ask whether it is part of a system that serves the real interests of everyone alike, before they are thought to have the particular interests that they have as members of that system.

Readers familiar with western moral philosophy will see that this question is akin to the question at the core of the social-contract tradition in moral theorizing. In that tradition, we imagine people in some situation -- called the "state of nature," or more recently, the "original position" (in Justice and Modern Moral Philosophy, I call it the "natural context") -- in which they are thought of in abstraction from the interests they have in their particular social system, and as having instead only the interests of human beings as such. Then we ask for the system of rules governing the exercise of force that it would be reasonable for all to agree to considering their real interests.

Some people doubt whether we could ask and answer the question about what is in everyone's interest in a way that did not fall prey to ideology. Others doubt whether there are any interests that are common to all human beings, considered in abstraction from the social systems in which they normally live. I think that the force of these doubts is exaggerated. I spend a good bit of time in Justice and Modern Moral Philosophy trying to answer them along lines that I can only suggest here.

As for the problem of ideology, it supplies its own answer. Ideology works by getting people to think that some system is in their interest when it isn't. It follows that if anyone thinks that ideology is at work in a given society, she must think that it is possible to distinguish people's real interests from their ideologically induced interests. Moreover, it also follows that posing the question of what is in everyone's interests is the only way we have of getting around ideology. We are, of course, never guaranteed success in this. Yet to deny that success is possible is also to deny the possibility of knowing that any belief is ideological, any system unjust. Postmodernists and other radicals who take the view that we can neither penetrate ideology, nor have real moral and factual knowledge, cut the ground from under their critiques of society.

As for the interest that all human beings share as human, I contend that it is the interest in living according to their own judgments about how they should live. (Even people who want to be dominated or enslaved want to live according to those judgments.) I think that this is a shared human interest because it arises in response to the discovery of our common mortality. Recognition that we live briefly and only once confronts us with the existential need to live a life that we can find worthwhile and meaningful in the face of the endless darkness and silence to follow. That we must find it meaningful entails that it must be a life that somehow matches our own judgments about how we should live. (It should not be thought that the emphasis on living a life that matches one's own judgments about how to live collapses the distinction between real and perceived interests -- it remains possible that a person is mistaken about what will actually serve her ability to live as she judges she should.)

The interest in living the life we judge we should live is our interest in not being subjugated, where "subjugation" is understood broadly as occurring whenever a person is gotten -- without adequate justification -- to go along with the judgment of another about how to live at the expense of his own contrary judgment. It is our interest in not being subjugated that is threatened by the force used both by criminals and by criminal justice. When we then ask for an explanation of the difference between unjust crime and just criminal justice, it will be that unjust crime violates the victim's interest in not being subjugated, while the force used by a just criminal-justice system serves everyone's interest in not being subjugated because that force is used to prevent subjugation.

Following out this clue, I go on to develop a whole theory of the nature and content of justice, which I call "justice as reason's answer to subjugation." The basic idea is that the conditions under which human beings are not subjugated are the conditions of justice. This is why it is to might that right is opposed. Note here that the role that reason plays in this argument is not mysterious or magical, as sometimes seems to be suggested by Milovanovic's comments. I do not understand by reason some "black box" out of which pop answers to moral questions. I understand by reason the capacity of normal human beings to recognize facts for what they are and to grasp their implications. Thus, it includes their ability to understand what threatens their ability to live according to their judgments and what protects them from that threat.

Since subjugation is a threat to the ability of all individuals to act on their judgments, all individuals have an interest in principles that protect their capacity to act on those judgments to the maximum extent compatible with the same for everyone else. Principles that protect this capacity will, of course, also limit people's ability to act on their judgments in those cases when so acting will reduce other people's ability to act on their judgments below the maximum compatible for all. Yet such principles cannot plausibly be accused of subjugating people since they only limit people for the purpose of protecting them against subjugation. Such principles have a special status that all rational individuals can -- because of their own interest in not being subjugated -- recognize as special.

I contend, then, that there is a general answer to the question of justice, and it can be used to test the justice of any principle meant to govern human behavior. The general answer is this: since justice is the absence of subjugation, principles that maximize each person's ability to act on his or her own judgments, which are compatible with a like ability for everyone else, are principles of justice. If the principle that people should tell the truth is a principle that maximizes all people's ability to act on their own judgments, for example, then truth-telling is a requirement of justice. Likewise, economic arrangements that maximize people's ability to act on their judgments are just. This test gives us the difference between unjust crime and just criminal justice. Further, I go on to argue, it gives us a standard for determining whether whole social systems are just.

Because the test of justice is a test of subjugation, rules (and actions pursuant to rules) that satisfy the test have the unique ability to resist the charge that they are merely attempts to impose some people's interests or beliefs on others -- to resist the charge of being might, not right. If right exists, it must be the opposite of might, and thus the requirements capable of withstanding this charge are the only ones that could be the requirements of justice. It follows that if there is justice at all, these requirements must be its content. One might see this approach as reversing the implications of Augustine's famous question: "Without justice, what are states but great robber bands?" This question assumes that justice is the opposite of subjugation. Augustine naturally thought that justice could be found first and then used to identify what subjugation is. I contend that we must proceed in the opposite direction: determine first what is subjugation and then use that to identify what is just.

To this argument, I add two others. First, I maintain that a social structure (understood as the basic political, legal, and economic institutions of a society) is a system of human behavior that, often unnoticed, forces people's behavior into specific channels. (I argue, along the way, that what Marx meant by ideology in capitalism boils down to the invisibility of social-structural force in capitalism.) Thus, social structures themselves raise the suspicion of subjugation. Consequently, the problem of social justice is that of determining the features of a social structure that all could reasonably agree to considering their interests in not being subjugated. Second, I formulate a moral version of the labor theory of value as a necessary tool for assessing the justice of the economic component of a social structure. As a moral version, it does not aim (as Marx did in Capital) to explain the actual movements of an economic system. My point is that what is morally important about the goods and services exchanged in an economic system is the labor that goes into producing them. The reason for this is that labor done is life itself -- time and energy -- expended.

Viewed this way, an economic distribution is always a system of the ratios in which people have to work for each other. If the economy is made up of me and you, where I earn $10,000 for a year of my labor and you earn $20,000 for a year of yours, what is morally crucial is that I must work twice as much for you as you must for me. (This, I believe, is masked by what Marx calls "the fetishism of commodities" and the closely related "money illusion.") Looking at economic systems this way enables us to see that they pose just as great a threat of subjugation as any political-legal arrangement, even when economic systems function according to "free" exchanges. (I think that this is the core of Marx' insight about capitalism; of his rejection of the phony distinction between the political and the economic realms; and of his insistence that what is important in economics is not how much anyone gets paid, but rather whether the system is effectively a form of slavery.) This allows me to treat the problem of economic justice as a matter of overcoming subjugation, rather than of parceling out pieces of the socially produced pie. Principles of just economic distributions are those to which it would be reasonable for all people -- with their interest in not being subjugated -- to agree upon.

I argue that a form of what is called the "difference principle" satisfies this. The difference principle holds that, to be just, economic inequalities must make everyone better off than they would be with less inequality or none at all. I devote considerable space in Justice and Modern Moral Philosophy to showing that, in light of the labor theory of moral value, this amounts to giving all participants in an economic system the greatest absolute share in the product of social labor at the cost of the least amount of work done for others. An economic system that satisfies the difference principle is a nonsubjugating system.

The upshot of these arguments (which I abridge drastically here) is that there are two basic components of justice. This is because the ability to live according to one's own judgments requires noninterference by others and fair sharing in the burdens and products of cooperative endeavors. I take it that noninterference is a requirement of natural justice, that is, one owed to all human beings. Fair sharing in cooperation is a requirement of social justice, that is, one owed to those with whom one cooperates. In any social system, both principles are valid, since cooperators still owe each other noninterference. The resulting conception of justice is embodied in the following two summary principles, the first of which sums up the obligations of natural justice and the second the obligations of social justice:

1. Whether or not people cooperate to produce benefits, they owe each

other noninterference, easy rescue, respect for natural ownership,

trustworthiness, intergenerational solicitude, and punishment no

greater than lex talionis and deterrence require -- and these are owed

to everyone equally.

2. Where people do cooperate to produce benefits, they owe each other

distribution of the benefits and efforts that went into producing them

according to the difference principle -- that inequalities must work to

maximize the share of everyone in society starting from the worst-off


A social system that satisfies these principles does not subjugate its members. I turn now to the specifics of Dragan Milovanovic's review of Justice and Modern Moral Philosophy.

Characteristic of Milovanovic's comments is his observation that Justice and Modern Moral Philosophy lacks a "transformative politics," a theory of how we get from an unjust to a just society. He is quite right about this. My aim is not to put forth a transformative politics, but rather to provide something that I think is fundamental to any sound transformative politics, namely, a standard by which those who would battle against injustice can determine what is just and what is not. What is disturbing about much transformative politics in this century is that it has often been guided by a moral dogmatism (even fanaticism) as irrational and ultimately destructive as that which it has sought to transform. If Justice and Modern Moral Philosophy contributes to an understanding of what should be transformed and what it should be transformed into and why, I shall be content.

This objection and the others made by Milovanovic seem to me to reflect the fact that, while Justice and Modern Moral Philosophy presents a normative argument, Milovanovic can't help but read it as the politically committed social scientist that he is. I point this out because I am sure that many readers of Social Justice share this "affliction" with Dragan and though it means that they (like he) will find interesting things in my book that I had not anticipated, it also means that they (like he) may overestimate its vulnerability to a certain line of objections. This line focuses on practical political issues, such as how we get from here to there, and how people will respond psychologically to different arrangements, etc. I don't dismiss these concerns as unimportant; they are just not the concerns to which my book is addressed. Moreover, and most important, the practical political objections all point to some way in which the struggle for justice is blocked. Yet struggling for justice presupposes that we already confidently believe that we know what justice requires, which means that the practical political problems presuppose (rather than undermine) the sort of project that I undertake. As I now briefly consider some of Milovanovic's criticisms, I shall show that they presuppose that we already have that which Justice and Modern Moral Philosophy aims to provide, namely, correct principles of justice.

The difference principle allows the more talented to earn more than the less talented as an incentive to bring out those greater talents voluntarily because this is less subjugating than forcing the more talented to work), but it doesn't allow the more talented to earn as much as they might in a purely free market. Though Milovanovic gives a detailed and largely sympathetic account of my argument for the difference principle understood in terms of labor time, he faults me both for not developing "a political economy of the procurement of talent" and for not considering that those who earn less might become resentful of those who earn more.

Since my goal is a standard of justice rather than a transformative politics, I am not concerned with resentment as such, but rather with what justifies resentment. (There is, by the way, a discussion of this issue in the book, which Milovanovic might profitably have used in formulating this challenge.) That the less talented may resent not earning more concerns me no more than that the more talented may resent the limits placed on their earnings. What concerns me is whether such resentment would be justified, and that depends on whether the resented distribution is just. This brings us back to the difference principle and the argument for it, whatever its psychological effects may be. To be sure, where differences in talent result from unjust differences in opportunity, then the rewards to greater talent will be arguably unjust. Thus, we will ultimately need "a political economy of the procurement of talent" to determine whether the rewards are just and the resentment justified. Milovanovic is right on this. However, once we have a political economy of talent, we still must determine whether the differences in opportunities that lead to differences in talent are unjust. For this, we will need principles of the sort defended in Justice and Modern Moral Philosophy.

Milovanovic points out that beneficiaries of injustice might use the principles that I develop to rationalize the unjust arrangements from which they benefit, in the way that criminals often rationalize their predations. No ideal is safe from misuse, however. The issue is whether we can identify the difference between valid use and misuse. Here the very standard of justice that can be misused is our only protection against misuse. The possibility of rationalization, like the possibility of ideology, haunts every attempt to assess the justice of social practices. Talk of rationalization or ideological masking of injustice presupposes, however, that there is a difference between just and unjust arrangements that we can grasp. Grasping it requires a clear and well-defended standard of justice. That is where the principles of justice as reason's answers to subjugation come in.

In a similar vein, Milovanovic points out that determining just economic distributions may require bureaucratic intrusions, even Taylorism, and this opens the door to the oppressive-discourses-posing-as-sweet-reason, that Foucault has lately brought to our attention. It must be noted that this objection would hold against any attempt at establishing economic justice or justice in any area of life. It surely would hold against the standards of economic justice that Marx proposes in his Critique of the Gotha Program (to each according to his time labored in the first stage of communism, from each according to his abilities and to each according to his needs in the final stage). More to the point, however, if such bureaucratic intrusions and their accompanying discourses are oppressive, then they will work injustice. For us to determine which discourses are oppressive, then, we will need a clear and well-defended standard of justice.

Finally, Milovanovic thinks that the principles of justice as reason's answer to subjugation would not allow affirmative-action programs to make up for past inequalities of opportunity. This assumes, however, that the principles of justice must be applied within existing arrangements without considering the justice of those arrangements -- and that's not so. The principles are aimed at judging the justice of whole societies. If those societies have deprived people of their rightful shares and opportunities, then the principles of justice themselves will mandate rectification. Here, too, the objection to the principles leads us back around to the principles themselves. Of course, the principles will only do the job if they are correct and well defended, which readers will have to judge for themselves.
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Title Annotation:Focus on Resistance, Rights, and Justice; response to article by Dragan Milovanic in this issue, p.124
Author:Reiman, Jeffrey
Publication:Social Justice
Date:Sep 22, 1992
Previous Article:Justice and Modern Moral Philosophy.
Next Article:Theories of Delinquency.

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