The Conception of Justice as Larger Loyalty

I wrote this for coursework in a Theories of Justice class a year ago. I think my scholarship here is amateurish, to some extent. Any comments, destructive or otherwise?

The Conception of Justice as Larger Loyalty: A Contextualist Critique of Kantian Universalism

The discourse on justice is a thread that spans both ethical and political theory, making it one of the instances that show the interconnection among the “sub-disciplines” of philosophy are to each other and the illusory nature of the project of compartmentalization of philosophy. I agree with Hilary Putnam when he said that the philosophy will lose the broad vision it always have had if we try to over-compartmentalize and zero in too much each “sub-discipline”. Justice has always been associated, if not equated, with virtue, making it an integral part of ethical theory. On the other hand, the traditional end of political theory is the conception of a just society and why it can (or cannot) be realized. Justice, therefore, is the lifeblood of political philosophy, at least in its traditional sense.

In this paper, I wish to defend the conception of justice as loyalty to larger groups people identify with and share a form of life, as opposed to the Kantian notion inherent in theories of John Rawls and Jurgen Habermas, as well as self-professed Kantians like Christine Korsgaard, that justice emanates from a faculty called “reason” and that it, regardless of context, can be realized by every “rational” person given enough critical reflection. Using the contextualist ethico-political theory heavily influenced by the philosophy of Ludwig Wittgenstein (like Michael Walzer’s), as well as other philosophers such as John Dewey and Martin Heidegger who objected to Kantian universalist assumptions, I will try to show that attempts to see justice from an objective viewpoint—“a view from nowhere” —is doomed to failure.

Justice as Loyalty to Larger Groups
Richard Rorty, in his paper “Justice as Larger Loyalty” (1977), originally outlined the conception of justice as loyalty to larger groups, i.e. appeals to act in the name of justice are appeals made in loyalty of a larger group which one identifies with. Consider this case of the Philippine decision not attend the 2010 Nobel Prize rites, where Chinese dissident and democratic rights activist Liu Xiaobo (or, rather, the chair on which he was supposed to sit on during the ceremony—he was, and still is, locked up in a Chinese prison) would be awarded the prestigious Nobel Peace Prize, to appease Beijing, who was upset over the awarding of the prize to the Liu. The Philippine government cited the plight of the three convicted Filipino drug mules awaiting execution in China, and the Manila Hostage Tragedy which resulted in the deaths of eight Hong Kong tourists, as reasons for boycotting the rites. For a moment, let us disregard the fact that even from a realist perspective such an act would be unwise (for it might encourage more diplomatic bullying from China and might alienate our Western allies, especially the United States, with our opportunist foreign policy). Many commentators criticized Manila for not taking a stand for “justice,” compromising its democratic ideals for short-term realpolitik, favouring the lives of three Filipino convicts over the millions of Chinese people who fight for democratic rights denied to them by the ruling Communist Party. On the other hand, supporters of the boycott spoke in the language of nationalism, praising President Noynoy Aquino for his nationalist preference.
Justice, in this sense, is seen as loyalty to a larger group, humanity, as opposed to the smaller loyalty to the Philippine state. Moral dilemmas, such as this one, can thus be characterized as conflicting loyalties, or moral identities, which people have. These moral identities provide the context in which people actually make their ethical decisions.
This conception of justice does not make distinctions between the concept of loyalty and justice; in fact, it gets away with the notion of justice as something different from loyalty. Nothing justifies the preference for larger groups; in this conceptual framework, the dichotomy between prudence and morality is destroyed and ethical theory itself is, in a Deweyan sense, being reconstructed. The question now is, as Rorty put it,

Kant: The Search for Universal Moral Principles
Kant would say that is not the case. Justice comes from reason and loyalty from “mere sentiment.” The job of ethical theory in Kant is to give people absolute, universal, completely context-free principles of morality that can be applied to all people in all places at all times. Kant did this in the form of his Categorical Imperative, which states that moral justifications end when one comes up with a principle one will apply to herself and to everybody else—“to act as if the maxim of our action were to become by our will a universal law of nature”. It assumes that if one is just willing to think long and hard enough, i.e. “critical reflection”, one will come up with rationality—Enlightenment rationality. Seen from a Kantian perspective, a theory of justice must therefore be universal and binding to everyone regardless of context. This Kantian claim to universality is the foundation for today’s liberal democracy’s own claims to universality and as the most rational form of human co-existence.
This Kantian deontological ethics was carried over to his political philosophy. While following Thomas Hobbes, John Locke, and Jean-Jacques Rousseau’s style of having a contractual basis for establishing a just society, Kant insisted that this contract is based a priori on the freedom, autonomy, and equality of persons. For Kant, as a corollary to his Categorical Imperative, the justice of a law is dependent on the possibility of a “whole people” agreeing to it, i.e. “universalizable”. It presupposes that all persons (who should participate in the political process—which in his view are adult males) have the capability to be rational and reach a consensus on matters of public policy.

Rawls and His Device of the Original Position
Kant made a lasting impact on moral philosophy, as later philosophers like Rawls had not gotten away from the idea of ethical theory as formulating absolute moral principles claiming universality. Rawls, in his classic opus[i] A Theory of Justice /i, theorizes about distributive justice by means of a social contract, as in Kant. He comes up with the theory of “justice as fairness” where he derives his two principles of justice where the problem of how liberty and equality can be reconciled. His project is especially Kantian; Rawls tries to look for context-free principles through his Original Position, a position where individuals under a “veil of ignorance”, i.e. they don’t know what would be their place once they’re in the society after they lift the veil, will deliberate what would be the principles of justice everyone will willingly abide by. Rawls designed the Original Position in such a way that the interests or anything that might get into the process of deciding what justice would be.
Rawls claimed that people in the Original Position will go for two principles of justice: the liberty principle and the difference principle. The liberty principle states that “[e]ach person is to have an equal right to the most extensive scheme of basic liberties compatible with a similar scheme of liberties for others” (Rawls, 1971, p. 303). Here, one can see Kant’s influence, not only on how Rawls formulated his first principle, but also the very project of principle-formulation itself.
The second principle, on the other hand, is distinctively Rawlsian, and in fact the one that brought him fame (and criticism, of course). It states that “[s]ocial and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged…, and (b) attached offices and positions open to all under conditions of fair equality of opportunity” (p. 303).
In Political Liberalism (19), Rawls develops his theory further and modifies it to a more historicist theory of an “overlapping consensus” in the shared forms of life in Western liberal democratic societies. He extends his theory of justice into the realm of the political and that political liberalism is the kind of socio-political arrangement in which his conception of justice as fairness may work. His brand of liberalism is “political” (in contrast with “philosophical” or “metaphysical”) in the sense that it is the result of an “overlapping consensus” in a (Western) political community; it is a political arrangement that supporters of different doctrines can agree upon by avoiding arguments in religion or philosophy. That overlapping consensus depends on having a common, “reasonable” code of morality in each of those doctrines.
In The Law of Peoples (1999), he extends his theory even further into a global context. In this work, Rawls sets out to use his device of the original position on states or “peoples”, instead of citizens as in A Theory of Justice. Here, Rawls does not assume that the peoples are in themselves liberal societies, but as long as they are “decent hierarchical peoples” these illiberal societies can be parties to the Law of Peoples. Excluded from this liberal international set-up are burdened states, outlaw states, and benevolent absolutisms. Rawls sees this as an attempt to show up to what extent liberal states can be reasonably expected in tolerating illiberal societies.
Rawls claims that in the original position, representatives of each people will adopt eight principles, namely: freedom, equality, right of self-defence but not a right to war, non-intervention, respect for treaties, restrictions on the conduct of war, human rights, and the duty to help peoples who can’t have a decent political regime.

The Habermasian Theory of Communicative Action
Habermas, in contrast to Rawls, has shifted the focus from the substantive kind of rationality (and, therefore, justice) to a procedural one that locates it in the structure of communication using language (communicative rationality) such as the absence of coercion, the mutual desire to understand, and the recognition of the force of the better argument. The just political arrangement, seen in this light, is the one that arises from an ideal speech act, i.e. a rational public discourse. For Habermas, given an idealized situation (as idealized, I think, as Rawls’ veil of ignorance) such as the ideal speech act attained by following the procedures laid down by Habermas’ universal pragmatics, the process of universalization can take place, starting from premises accepted across cultures. Habermas claims that his account of rationality is historicist and contextualized but does not subscribe it to context-dependence and relativity. He instead grounds it in the everyday practice and speech of individuals (putting it in context).
Habermas stressed the significance of his three validity dimensions, or “worlds" of normative rightness or the inter-subjectivity of the norm (WE), theoretical truth or the state of affairs’ correspondence with reality (IT), and the sincerity of the speaker (I), as the criteria by which a hearer will judge whether a speech act is rational. The basic difference between Kant and Habermas is this: while Kant supposes that the rational subject would be forced to accept moral principles through critical reflection, Habermas insists on the necessity among individuals to be engaged in a dialectic, which will force on them the rational justification of validity claims through the force of the better argument.
From this notion of rationality comes Habermas’ theory of communicative action. Such a communicative action is possible because of the human capacity for communicative rationality. For example, public policy arising out of an ideal speech act is a communicative action, i.e. rational and just.

The Wittgensteinian Rejoinder: Pre-contractual Agreement in Judgements
Although Wittgenstein himself never wrote anything about political theory, Wittgensteinian philosophers like Hanna Pitkin [Wittgenstein and Justice (1972)], Michael Walzer [Spheres of Justice (1983)], James Tully [Strange Multiplicity: Constitutionalism in an Age of Diversity (1995)], Chantal Mouffe [“Wittgenstein, Political Theory, and Democracy” (2000)] and others went out of their way to interpret political theory in a Wittgensteinian light. The emphasis here is on the multiplicity of the shared forms of life, of possible political language-games people actually play and that all of these language-games are legitimate and must be respected. This calls for a reconstruction of democratic thinking and cast it in a Wittgensteinian mould.
Wittgenstein strikes deeply into the heart of Kantian rationalism; he says in the masterpiece of his later philosophy, Philosophical Investigations (1953), that “if language is to be a means of communication there must be agreement not only in definitions but also (queer as this may sound) in judgements” (I-242). Liberal democracy, in this case, is just one of the political language-games possible and that it should renounce its claims to universality. Before the Kantian social contract, or the Rawlsian original position, or the Habermasian ideal speech act, there has already been agreement in the community with regard to the form of life people in that community already share. This entails that the principles Kant and Rawls arrived at and the procedures Habermas laid down in his universal pragmatics are product of their inclination as practitioners of a certain form of life. Without these pre-contractual agreements in judgements, there could be no communication or mutual understanding. The role of political theorist, therefore, is not to give a rational answer to the question of what a just political arrangement would look like, but rather to interpret the form of life of the political community she identifies with. There is no such thing as an “overlapping consensus” to start with, no premises from which we can all agree on. To brand someone as “irrational” because one does not share a form of life with her is hopelessly pointless and futile. Wittgenstein thinks that agreement comes not as a product of reason, as in Habermasian deliberative democracy, but as shared form of life, as shared system of meanings people act upon; “it is not a kind of seeing on our part; it is our acting which lies at the bottom of the language-game.” (Wittgenstein, 1969)
But to assume that communities are always homogenous in their shared system of meanings is to miss the point; “the multiplicity of uses is too various, tangled, and contested, and creative to be governed by rules,” (qtd. In Mouffe, 2000; Tully, 1995, p. 107). One cannot reduce these into a monolithic “form of life” to be read like a text that is so straightforward that it does not require interpretation. No, Wittgenstein advises us to don’t conceptualize but “look and see” and find for yourself the “family resemblances” these meanings have.
I think this Wittgensteinian take on political theory implies a Hegelian view of the state. For Hegel, the state is the ultimate realization of the people’s will, the agent of history, the result of the dialectical process. Wittgensteinian theorists suggest a picture that is Gramscian, the only difference is, I think, is that Wittgenstein considers these forms of life as legitimate in themselves.
In contrast to Habermas, the end of Wittgensteinian political theory is not consensus, but the recognition and respect for differences in forms of life is even more important than consensus, as all of these forms of life, given that they are shared by a group of people, are legitimate, and that consensus can deprive a small minority of its legitimate voice. But I don’t think it would be a rosy picture of people respecting other people despite their differences. There would always be conflict. Politics is endless. I think this view of society resembles much of (Neo-)Gramscian theory of hegemony, with the hegemon as the dominant form of life in the community and the counter-hegemonic forms of life continuously oppose the hegemonic power. Political culture in this sense is not a static thing which social scientists are out to discover, but a dynamic system of shared meanings—shared forms of life—continually shaped by the hegemony and the counter-hegemonic project.

Dewey: Morality as Function
Dewey hit the nail on the head when he conceived of morality as being identical with prudence. His aversion to the Kantian way of thinking about morality is evident; he writes that “what is scientific about morality is neither some basic principle nor principles on which it rests… but the general structure of its contents and methods” (Dewey, 1971, p. 120). It has its own mechanisms for self-correction but it does not put at the risk of danger everything at once. People do not need principles to guide them; they have always considered the context of the situation when it comes to moral dilemmas. Dewey sees morality as a function, that is, as something that does not happen in a vacuum. It’s forever context-dependent, and that people make choices with the identities they identify with. On this point I am tying up Deweyan ethics to the Wittgensteinian idea of the pre-contractual shared form of life. People always make their moral decisions in consideration of these moral identities.

Resemblance to Heidegger’s “World Disclosure”
The philosophy of Heidegger, I think, bears much resemblance to Wittgenstein’s and Dewey’s with regard to the Heideggerian concept of “world disclosure,” a phenomenon wherein humans makes sense of things, by being in a “world,” i.e. a pre-reflective and holistic system of meanings, as in the Hegelian idea of the thing as what it is in relation to other things, acquired through socialization with other humans and things, and, more importantly, through language. This Heideggerian “world” is almost the same as the Wittgensteinian “form of life”. In Wittgenstein’s own words, “All testing, all confirmation and disconfirmation of a hypothesis takes place already within a system. And this system is not a more or less arbitrary and doubtful point of departure for all our arguments: no, it belongs to the essence of what we call an argument.” We have, as Michael Walzer put it, started it “thick” with context going to “thin” moral principles, instead of the Kantian way of going from “thin” to ”thick.”

Foucault’s Critique of Habermas’ Communicative Rationality
Michel Foucault attacked Habermas’ utopian vision of communicative action, saying that the communicative rationality on which it is based disregards the existence (and ubiquity) of power relations among societal actors, and that critical theory’s project of human emancipation will be fruitless because of the ubiquity and omnipresence of power relations.

The Communitarian Connection
The Contextualist approach to ethico-political theory can be seen as a deep philosophical grounding of communitarianism. Communal values are rooted in the shared form of life of the political community. Michael Sandel, in his Democracy’s Discontents (1996), argues that the Kantian liberal image of the “unencumbered self” is flawed, because “it cannot make sense of our moral experience, because it cannot account for certain moral and political obligations that we commonly recognize, even prize.” (Sandel, 1996) These are communal values we take up when we don our moral identities. We do special stuff for our significant other, giving her the most exclusivist love one could ever possibly give. We have our loyalties to our families, to our tribes, to our countries, to our species, and even to all sentient beings. These loyalties are psychologically potent because of the sense of identity they offer to the individual. It would be difficult to make sense of people’s moral choices without these moral identities in consideration.
A more powerful critique Walzer made was his attack on Rawls’ political liberalism. He questions the capability of the minimalist liberal state to be neutral on issues that the state cannot opt not to have a stand, as in the case of abortion and slavery. How will the state determine how respond in cases where both action and inaction implies a philosophical stand?
The communitarian attack has invited various responses from the liberals. The first line of defence is that liberalism also cares about communities as part of the individual’s nature as a social being, the difference lies in their view of the state and culture. Liberals think that they have to protect the individual from a potentially harmful state/culture.
Wittgensteinian political theorists would probably just reply to this liberal defence by situating liberal thought in a historicist context, that liberal insistence on the autonomy of the individual and the unfavourable view of the state arose from the conditions in which liberalism was formed during the early modern period, when absolutist states abused their power, and culture has been traditionally discriminatory of minority and other less-advantaged groups.

Rorty’s “Ethnocentric Liberalism”
Rorty, deviates from Wittgenstein on political theory, said Mouffe, on one aspect: he, as a “loyal Westerner” has not gotten away with the notion that liberal democracy is “superior” on the basis of its material success in the West and that ideally it must be spread to other societies through economic persuasion and the right kind of sentimental education, effecting cultural change (Rorty, p. 55). Mouffe says that when Rorty champions liberal democracy as a marker of moral and political progress, Rorty was deviating from his Wittgensteinian inspiration.

Is the Contextualist Approach a Performative Contradiction?
Habermas’ idea of a performative contradiction is “the lack of fit between the content and the performance of the speech act.” In this sense, the Liar’s Paradox is a performative contradiction. Habermas uses this idea to criticize postmodern argumentation (which includes Wittgenstein, Foucault, Dewey, and Heidegger) and its epistemological relativism as paradoxically aiming for the universal, when it rejects universalism. Does the criticism hold true?
I don’t think so. I think of the methods employed by these philosophers as playing the role of a Wittgensteinian ladder in Tractatus Logico-Philosophicus 6.54 which one must throw away when one has finally seen things aright. I think it’s a pedagogical method, that although it is part of the object of criticism (that is, it also renders the world-disclosing argument as nonsense), it brings you to philosophical elucidation of ideas or enlightenment.

Conclusion
The discourse on justice is a relatively important one; it addresses the heart of both ethical and political theory and the concept of justice itself is seen as a necessary requisite for lasting peace. A just society in the rationalist sense is probably utopian and many wars have been waged and untold sufferings have been experienced by real people throughout the history of humanity in pursuit of this ideal. But I’m still a liberal by conviction, not because it is the rational form of socio-political arrangement, but because I share in liberalism’s form of life. I think I’d concur with Wittgenstein that the “just” political arrangement is the one you identify with, a real community, a group that shares a world of meanings. And that supposes that you, at the very least, share the same language. The linguistic requirement for sharing a form of life, I think, would exclude animals from this set-up, when, in the first place, they don’t speak a human language. But that does not mean it would be alright everywhere to violate “animal rights,” but such a notion of rights must be rooted in the agreements you have with your human community.

“Justice”, then, is the recognition of the legitimacy of the forms of life people actually share, and that moral dilemmas concerning justice arise from the conflicting loyalties or moral identities that people hold dear.

References
Bohman, James. “Jurgen Habermas” Stanford Encyclopedia of Philosophy plato.stanford.edu/entries/Habermas/ (2007)
Dewey, John. “Outline of a Critical Theory in Ethics” The Early Works of John Dewey, vol. III. Carbondale: Southern Illinois University Press. (1971)
Field, Richard. “John Dewey” Internet Encyclopedia of Philosophy iep.utm.edu/dewey (2005)
Flyvbjerg, Bent. “Habermas and Foucault: thinkers for civil society?” British Journal of Sociology, vol. 49, no. 2, June 1998, 208-233. http:/flyvbjerg.plan.aau.dk/CIVSOC%200PRINTBJKS.pdf
Korab-Karpowicz, W.J. “Martin Heidegger” Internet Encyclopedia of Philosophy www.iep.utm.edu/heidegge/ (2001)
Mouffe, Chantal. “Wittgenstein, Political Theory, and Democracy” polylog: Forum for Intercultural Philosophy 2 them.polylog.org/2/amc-en.htm
Pitkin, Hanna. Wittgenstein and Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought Berkeley: University of California Press. (1972)
Rawls, John. A Theory of Justice Cambridge, Mass.: Harvard University Press (1971)
Political Liberalism New York: Columbia University Press. (1996)
Rorty, Richard. “Justice as Larger Loyalty” Philosophy as Cultural Politics: Philosophical Papers Vol. 4. Cambridge: Cambridge University Press. (2007)
Sandel, Michael Democracy’s Discontents Cambridge, Mass.: Harvard University Press. (1996)
Wenar, Leif. “John Rawls” Stanford Encyclopedia of Philosophy plato.stanford.edu/entries/rawls (2008)
Wittgenstein, Ludwig. Philosophical Investigations Oxford: Blackwell. (1958)
On Certainty (1969)