What do we mean when we say 'injustice'? : lessons from Rawls, race and gender

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Graduate School of Social Science

Political Science Masters: Political Theory Track

Master’s Degree Thesis June 2017

“What do we mean when we say ‘injustice’?: Lessons from

Rawls, race and gender.”

Mark Briggs (11398353)

First Reader: Dr Michael Eze

Second Reader: Dr Paul Raekstad

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“Not everything that is faced can be changed, but nothing can be changed that isn’t faced.” James Baldwin

“Do not deplore, do not laugh, do not hate; understand.” Baruch Spinoza

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Acknowledgements

Thank you to everyone who has ever had the patience to discuss politics

with me. No doubt it was a trying experience for you, but hopefully I have

put your hard work to good use.

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What do we mean when we say ‘injustice’? Lessons from Rawls, race and

gender.

Mark Briggs. University of Amsterdam Masters Thesis. June 2017.

Abstract:

This thesis will ask: if justice is fairness then is injustice unfairness? Drawing from John Rawls’ A Theory of Justice I will argue that defining injustice as unfairness is insufficient to explain all the phenomena involved in injustice. I will examine patriarchal rule and Western imperialism and draw similarities between the two practices. I will then show the role narrative plays in the creation and maintenance of such ideologies before I suggest the use of Ubuntu as both a critical humanism and a normative ethic to help combat the narratives of exclusion that lay the groundwork for injustices to occur.

Introduction

There are several reasons why the study of political theory is a valuable pursuit. It can help uncover common ground to disputes previously thought of as intractable (Rawls 2001:2). It can contribute to how people think about their political and social institutions, and how their own personal political status regarding these institutions affects their relationship to the wider social world around them (idem:2-3). It can help people reconcile their frustrations with how things are by trying to explain why things are as they are (ibid). It can also probe the outer limits of what is practically politically possible (idem:4).

Gerry Cohen suggested there are three ways to perform such tasks. You can ask: What is justice? What should the state do? Or, which social state of affairs ought to be brought about? (Cohen 2011:227). This thesis will question if people should be reconciled to the way things are through an examination of how they came to be. This work therefore fits into the Critical Theory tradition and aims to be explanatory, practical and normative in its analysis of injustice and will focus on humans as “producers of their own historical form of life” (Horkheimer 1993). I will critically examine the frameworks and assumptions that underpin our current social arrangements and, where appropriate, make normative recommendations.

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John Rawls famously wrote that justice is the first virtue of social institutions. Rawls wanted justice to be the metric against which we judge the operation of our society and its governance. If social institutions are unjust then they should be abandoned or altered. Rawls also wrote about how he thought a just society would be organised. His theory of an idealised vision of justice has been incredibly influential but had next to nothing to say about the daily reality of injustice.

Rawls defined justice as fairness. This thesis will ask the inverse question: Is injustice unfairness? This work therefore fits into a wider debate about whether injustice is the absence of justice, or vice versa, and into the critical theory tradition of political theory that engages critically with the question of what makes something legitimate. I will take a critical look at how things are, how they came to be this way, and how they can be improved. Theodor Adorno said philosophy should focus on why social suffering exists in a world where it can be eradicated (Adorno 1998:14). This thesis will look specifically at the circumstances that allow injustices to occur and how they can be prevented.

Rawls’ theory asks how a society of free and equal citizens would choose to govern themselves if self-interest was not a motivating factor. It is the premise of this argument that most intrigues me. Answering the question of what a society of equally free and equal people would look like is an appealingly utopian pursuit. However, this thesis will focus more on the premise of Rawls’ theory; what prevents a society of free and equal citizens from coming into being. To answer that question I will examine two instances where citizens are not free and equal to see if there are similarities in these oppressive actions and attitudes.

To do this I will examine the historic disenfranchisement of women and non-Europeans in Western liberal societies. I will attempt to find similarities between patriarchal rule and Western imperialism in an attempt to identify common themes in the practice and legitimation of injustice.

The thesis will use an analytic approach. Careful consideration will be given to what exactly terms such as unfairness and injustice mean because: “Loose thinking on these matters leads to careless language, which in turn promotes misinformation” (Fields 1990:99). The analytic approach does more than clarify the meaning of a term, it also requires the practitioner to consider what work we want these definitions and concepts to do (Haslanger 2000:33-34). Will certain approaches and definitions help eradicate injustice or will the same definitions in some

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way legitimise injustice? This thesis will seek to add to the debate about how we might usefully refine our understanding of injustice for the theoretical and political purpose of helping to eradicate injustice everywhere.

To do this I will examine the narratives of legitimation that lie behind unjust actions. Aristotle said humans were political animals and Alasdair MacIntyre said humans were story telling animals (Aristotle 1999, MacIntyre 1981). If true, then humans must tell stories about their politics. The stories humans tell about their politics and the actions these stories legitimise will be considered in this thesis.

I will argue that injustice is not the same as unfairness. Although all injustice is unfair not all unfairness is injustice. There are additional phenomena that take place to create the environment for injustice to occur. I will argue that an injustice is a pattern of oppressive behaviour directed at a section of society legitimised by a narrative that de-recognises an individual’s parity of humanity. Whereas unfairness is arbitrary and can be corrected by redistribution, injustice is the result of a belief that certain sections of society do not deserve equal treatment. This is not arbitrary because it is created and legitimised by a narrative of dehumanisation held in the stories we tell ourselves about politics and who should wield power in our societies. Such practices and attitudes cannot be eradicated through redistribution alone and are not random occurrences. Therefore what is needed is a normative approach that treats all humans as equally worthy of respect and recognises their right to parity of participation in the political, economic and cultural spheres that combine to make a society.

In Chapter One I will examine Rawls’ theory of justice as fairness and explore some of the theory’s shortcomings in the context of injustice. I will then examine two cases of injustice; Chapter Two will look at patriarchal and Chapter Three will look at Western imperialism. I will specifically focus on the narrative that proponents of these practices use to legitimise their actions. I will argue that neither of these practices are arbitrary but are deliberately created and sustained to benefit certain sections of society over others. Chapter Four will deal directly with how narratives are legitimised. Finally, Chapter Five will argue that Ubuntu should be used as a critical tool to identify injustice and could be used as a normative ethic to de-legitimise narratives of oppression, domination and injustice. This thesis will not examine narratives as potential paradigms of absolute truth, but will instead focus on the behaviours and attitudes that narratives inspire in individuals and society more generally. The narratives of the social contract,

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exclusion, and the imperial nature of rationality have not had the impact of eliminating injustice that proponents of liberal individual rights hoped it might. It is therefore time for a new narrative, one that places Ubuntu at its centre and promotes ideas of shared and equal humanity with the aim of eradicating injustice.

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Chapter One: Justice as fairness: an examination

“Is not justice human excellence?” - Socrates

John Rawls’ theory of justice as fairness holds a central position among modern theories about justice. Although its scope and premises have been criticised, most notably by the cosmopolitan and communitarian schools, the key conclusions of the book have gone largely unchallenged and have influenced successive generations of scholars, politicians and public policy advocates. Although it staunchly defends liberalism, which has been heavily criticised in the period since 1971, the book’s influence and reputation mean any theoretical discussion about justice or injustice is incomplete without mention of John Rawls, his theory of justice, and his famous thought experiment; the veil of ignorance. The esteem in which his work is held and the influence it has had on modern political philosophy mean it is important to understand how Rawls understood justice, and why he felt it was such an important subject for study.

John Rawls took as his starting point the idea that people live in political societies and that this requires a set of agreed upon principles for the governance of those societies. It was Aristotle who first claimed that humans are a “political animal” (Aristotle 1999) who naturally want to live together and do so for common advantage. Thomas Hobbes held that without such associations man would be forced to live in a lawless state of nature and that would lead to short, nasty, brutish lives (Hobbes 1651). Two hundred years after Hobbes, Immanuel Kant argued humans had a duty to enter into political association because it was the only way to guarantee everyone received basic rights. “When you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is a condition of distributive justice” (Kant 1991:121–22).

According to Rawls, people who live in a society are bound by a basic structure of social institutions. The structure is comprised of political, social and economic arrangements which taken together have a profound effect on the lives of the individuals who live with that particular set of social relations (Rawls 1971:7). How this basic structure distributes the rights and duties that are the result of common association is the subject of Rawls’ theory of justice.

Rawls argued that social cooperation is mutually advantageous to its citizens; it helps individuals achieve things they could not manage alone. But Rawls also thought that there

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would inevitably be disagreements about how to organise a political society to ensure it is mutually beneficial to those who live in it (idem:4). Rawls believed that for a society to be well ordered social institutions must abide by principles that everyone agrees to and is known to agree to. This would make a certain set of social relations more likely to gain the consent of those living with them and make them more likely to survive. Therefore, Rawls argued that the rights and duties connected to social institutions, and the benefits and burdens of social cooperation, should be assigned and distributed according to principles of social justice (ibid).

Rawls’ summarised his vision in the opening passages of A Theory of Justice:

“Justice is the first virtue of social institutions as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise law and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.” (Ibid:3)

The task Rawls set himself was to define a political conception of justice and explain how it should govern political, social and economic institutions (Rawls 1985: 224)

Why justice?

Rawls recognised that in a pluralistic and liberal society everyone was entitled to have their own conception of the good life; what constitutes a life well led, and the virtues such a life would promote. As a proponent of liberalism, he believed that no one should force their conception of the good on anybody else, or have someone else’s conception of the good forced on them (Rawls 1971:18). The question Rawls asked himself was how people can organise their social cooperation when everyone who is trying to cooperate has a different conception of the good.

“One practicable aim of justice as fairness is to provide an acceptable philosophical and moral basis for democratic institutions and thus to address the question of how the claims of liberty and equality are to be understood” (Rawls 2001:5)

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A successful outcome would be a well ordered society where everyone knows and accepts the same principles of justice and where the social institutions satisfy and are known to satisfy those principles. (Rawls 1971:5).

“Those who hold different conceptions of justice can, then, still agree that institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties when the rules determine a proper balance between competing claims to the advantages of social life.” (ibid)

Once a concept of justice is agreed upon it can be applied to a society’s basic structure and used to underpin social cooperation. Rawls rejected the idea that the foundational principle should be one based on morality. Not only would each member of the society believe their morals should be chosen but Rawls also argued that institutions and individuals are different enough to require different standards for their governance. “The correct regulative principle for anything depends on the nature of that thing” (Rawls 1971:25). Morality for the individual, justice for society.

Rawls also wanted to avoid making metaphysical claims about the universal nature of people, or the universal good (Rawls 1985). G.E.M. Anscombe has supported the avoidance of metaphysical and universal morals. In her paper Modern Moral Philosophy, Anscombe argued that without an appeal to divine law morality lack a viable reason to be accepted. Anscombe said that an appeal to the divine gives moral claims a universal authority that morality lacks without the divine. Anscombe argued that without the authority of an omnipotent creator to legitimise a universal morality the only other way to appeal to the universality of human nature would be through psychology. But, Anscombe said we do not have a sufficient understanding of human psychology to be able to make universal claims about human nature and its correct behaviour. Appeals to morality without divinity, Anscombe argued, were akin to the idea of a criminal if the law and courts had long since been abolished and forgotten (Anscombe 1958:6). Moral and metaphysical claims that are based on an appeal to the divine lack the broad appeal to gain widespread acceptance in modern, secular society where each individual has their particular conception of the good. Aside from the many atheists or agnostics who live within its borders, each pluralist society will include people of different religions who each have their own private justifications for a particular conception of the good, which have been justified through

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an appeal to the divine law of a particular deity. Such arguments are unlikely to win people over who do not believe in the divinity of certain individuals or texts from which the other person draws their morality. Justifications need to be valid to people of different backgrounds; what Rawls called public reason (Rawls 1997). For example, expressing a belief that a certain action is right or wrong through an appeal to holy scripture fails this test because not everyone in a given society will accept the divinity of that particular scripture, whereas the same action could be justified on grounds of public safety and the test would be satisfied.

Anscombe admitted she had no idea how to define justice but added: “It’s sphere is that of actions which relate to someone else” (Anscombe 1958:4). In Rawls’ philosophy he was looking for a definition of justice that would guide society’s behaviour towards individuals in that society. To do this Rawls adopted the metaphor of the social contract. He set out to answer the question of what principles people would agree to in the original position, ie at the start of the founding of a society. This, he hoped, would give the principles that he promoted a justification and an objectivity that other approaches - such as those that focus on desert, or on specific resources - might lack (idem: 235).

In order to make the principles as widely accepted as possible Rawls recognised he needed to account for self-interest.

“It seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles. It also seems widely agreed that it should be impossible to tailor principles to the circumstances of one’s own case” (Rawls 1971: 18)

In order to identify principles of justice that were not influenced by self-interest, Rawls proposed a thought experiment which he believed would help identify the principles of justice that everyone would rationally agree to in the original position to form the basis of a social contract. The experiment is called the veil of ignorance. The aim was to guarantee “fair procedure so that any principles agreed to will be just” (idem: 136). Rawls hoped that fair principles could be derived by creating an ideal exemplar of pure procedural justice; one that nullified the contingencies of individuals circumstances.

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Each person behind the veil is unaware of their own position within society and so is therefore ignorant of how various conceptions of justice will affect their life once the veil is lifted. The level of ignorance includes their class or social position, their own natural assets and abilities including intelligence, strength and personal fortune. They do not know their own psychology or personal life plans, or their own conception of the good (so there is no temptation to promote their own idea). They also do not know the circumstances of their society when it comes to politics or economics, and they do not know which generation they are part of (idem 137).

The veil is pretty extensive in terms of personal circumstance. Rawls did, however, grant participants a large body of education and knowledge that he regarded as important to be able to fully understand the social component of justice. Participants know that their society is subject to the circumstances of justice and it is “taken for granted” that they understand political affairs and the principles of economic theory, social organization and human psychology (ibid). It is not explained what level of general knowledge Rawls thinks the parties need in order to agree to a conception of justice. All Rawls said on the subject was that to help ensure the best principles of justice there are no limitations placed on the general information available to participants. The ignorance included in the title of the thought experiment refers to an individual’s personal circumstance, not to an ignorance about how a society functions.

Rawls argued the veil of ignorance provides the best abstraction to hypothesise what people would want to agree to before entering into a social contract that would underwrite social cooperation in their society. To achieve this, Rawls argued, there would need to be a base level of equality when it came to decision making. “If the original position is to yield agreements that are just, the parties must be fairly situated and treated equally as moral persons” (idem: 141). All are equal, and unaware of their particular advantages. Under such fair conditions, and guided by equal rationality, people would come to an agreement on principles of justice that are fair to all members of society because, Rawls argued, parties behind the veil would be unlikely to gamble and risk disadvantaging themselves (ibid). Hence Rawls defines his theory as “justice as fairness”.

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Rawlsian justice

Having set up the conditions in which Rawls believed a conception of justice could be agreed to, Rawls went one stage further and suggested two principles he believed people would agree to behind the veil of ignorance.

1. Everyone has an equal right to basic liberties and these should be as extensive as possible while remaining compatible with equal levels of liberty for everyone else. 2. Social and economic inequalities are arranged so that they are a) to everyone’s

advantage. b) attached to positions and offices open to all. (idem:60)

The basic liberties Rawls referred to include, among other things, freedom of speech and assembly, right to stand for office, right to own property and freedom from arbitrary arrest. The list is pretty representative of what one might expect a philosopher working in the liberal tradition to arrive at. The second principle is more controversial. It holds that although inequalities in social and economics arrangements are acceptable they must disproportionately benefit the poorest over the well off. Rawls calls this the difference principle. If a society allows one member to earn an extremely high salary they must be taxed to the point where it can benefit those who earn a very low salary and therefore making it in everyone’s interest that one person earns a significantly higher salary. The second part of Rawls’ second principle refers to equality of opportunity meaning that positions or offices with high rewards are open to all who wish to stand or apply for them.

The principles are in lexical order with the first prioritised over the second. The unequal distribution of liberty cannot be compensated for by greater social or economic advantages for the individual or for society as a whole.

Rawls regarded his definition as one of “justice as fairness” because he believed under completely fair conditions people would agree to a conception of justice based on fairness. Rawls did not conflate fairness with equality. He was explicit about the fact that material inequality was necessarily unfair provided that the inequality was used to the benefit of all within the society as mentioned in his second principle of justice (ibid). This approach allows for inequality in material resources such as wealth, but not for inequality in basic liberties (because the principle are in lexical order). Rawls, in the Kantian tradition, regards each individual as the

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ends rather than the means to justice and therefore “Each person possess an inviolability founded on justice” meaning “an injustice is tolerable only when it is necessary to avoid an even greater injustice.” (idem:4)

A problem arises here. Rawls is never explicit as to what he means by an injustice. In the 587 pages of A Theory of Justice, the closest he comes to a definition is one line which he himself admits is insufficient. “Injustice, then, is simply inequalities that are not to the benefit of all. Of course, this conception is extremely vague and requires interpretation.” (idem:62). Rawls based most of his conception of justice in the realm of ideal theory. He was explicit about his approach and aware of its shortcomings (in Rawls’ case the issue of perfect compliance poses a huge challenge to the real world application of his theory). Despite this, he regarded ideal theory as an important exercise to provide an idealised conception of justice with which to guide the real world efforts that are riddled with imperfections and self-interest. The closest he came to discussing such real world scenarios was in his chapter on civil disobedience. Here Rawls discussed what he regarded as a proper justification for civil disobedience in a nearly just society. But he again stopped short of providing us with clear definitions of what he regarded as actions deserving of such a response.

In the chapter on civil disobedience, Rawls gave examples of where injustice can arise from. First, injustice can come from arrangements that depart from just public standards. Or, second, if arrangements do conform to standards then if the conception of justice used to justify them are unreasonable (idem:352). From which Rawls declared injustices should be “easy enough to distinguish” (ibid) but he argued there was a difference between laws and institutions. Rawls claimed just institutions could, on occasion, pass unjust laws. Rawls argued it was justifiable to protest an unjust law as long as it didn’t result in the collapse of a just institution. Aside from these brief passages where Rawls told his readers they will recognise injustice when they saw it, and when they do it was ok to protest against it, we are left to guess at what actions Rawls himself would class as unjust. At one point Rawls said the existence of injustice was acceptable as long as the burden was equally shared (idem:355). Without a clearer understanding of what Rawls meant by injustice, it is hard to understand exactly how the burden of an injustice could ever be adequately shared, and who would decide if it was?

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Responses to Rawls

Rawls’ theory has faced criticism from those who question its scope and those who object to its emphasis on the individual. Coming out of the same Kantian tradition as John Rawls, Thomas Pogge argued that the obligation for justice extends beyond the domestic basic structure. Like Rawls, Pogge argued that people are the ultimate unit of moral concern (Pogge 1992:49). Because human beings share a “single, global, institutional scheme” (something akin to Rawls’ idea of the basic structure) human rights anywhere are human concerns everywhere (idem:51). The shared international scheme means our actions have global consequences for persons all around the world, not just in our domestic societies, which was the limit of Rawls’ theory.1_The

idea of global justice is certainly an appealing thought, however Pogge’s approach has a feasibility flaw. What criteria should the international community use to decide when concerns require actions? Pogge has suggested that human rights should perform this task (Pogge 2005). However, not all countries place as much value on human rights as others. Building a consensus on the scale Pogge wants is another feasibility constraint. And, if countries cannot agree, then, one party has to try and make a decision. On what basis does that party legitimise its decision to speak for everyone? In this thesis I will not directly deal with this criticism of Rawls’s theory. The extent of the scope is, in this case, of secondary interest to the definition of justice as fairness and analytic juxtaposition of injustice as unfairness.

The second prominent criticism of Rawls and his theory of justice is more applicable to this thesis. Rawls presented a rule based approach that focused almost entirely on the individual. Rawls based his theory on the question: ‘what would the individual agree to behind the veil of ignorance when isolated from the rest of society?’ Michael Sandel has argued that this approach strips people of the things that give their lives meaning. Many people find value in their religious beliefs or from their membership of a certain strata of social life. What people value will inevitably shape their personal ethics and influence their views on virtue. Sandel argued that people are not the freely choosing unencumbered selves that Rawls presents them to be and any theory that insists on treating them as such is misguided. Sandel instead argued for a primary of the good over the right, the opposite of what Rawls argued for (Sandel 2009:248). Other critics have attacked Rawls’ universal claims, despite his attempts to avoid making any. Alasdair MacIntyre argued that people evaluate both moral and political claims

1_{Although Rawls did later write that our obligation for justice could extend beyond the domestic sphere to}

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using an interpretative framework they have build from their personal experiences. Therefore any decisions they make will be contingent and should not be applied universally (MacIntyre 1978 ch 18-22). Michael Walzer has also argued in favour of the importance of context in claims about justice. He argued that any attempt at universalisation becomes too abstract to be of any value when it comes to making actual decisions about justice (Walzer 1983:8).

The final criticism of Rawls’ theory I will highlight is my own critique. Rawls assumes a society of free and equal citizens and then places them behind a veil where they are ignorant of their own social standing. Because of this Rawls completely abstracts power out of consideration. To ignore power is to ignore the mechanism by which people become bound and unequal. By ignoring power Rawls also ignores a key element in how people’s ideas of the good are created, how ideas about what is right and wrong are created and legitimised. I will refer back to this point on several occasions during this thesis when discussing how injustices are perpetrated.

The concept of the universal and who gets to define it will be a key component of the critique of Rawls’ theory contained in this thesis. I will question the legitimation narratives of various claims to the universal specifically about women and about race. I will show how historically these claims to universal truth led to cases of injustice so clear we cannot fail but to recognise them. I will show how Rawls’ theory does not adequately account for the existence of injustice in the real world because such practices go beyond what is unfair.

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Chapter Two: The injustice of gender

“Gender is between your ears and not between your legs.” - Chaz Bono

In the previous chapter I examined John Rawls’ theory of justice as fairness. In the remainder of this thesis I will argue Rawls’ theory provides an inadequate account of injustice. I will argue that even if justice does equate to fairness, injustice is not synonymous with unfairness. In this and the subsequent chapter, I will argue that unfairness does not adequately account for the practices and ideologies of two common injustices in modern society; misogyny and racism. Once I have proved that unfairness is an inadequate definition of injustice I will propose the de-recognition of someone’s humanity as a necessary component of injustice and I will examine the role discourse plays in de-recognition. If my argument is correct, then narratives, practices and policies that aim to promote fairness will be insufficient to eradicate injustice in our societies and a new approach is needed instead.

Unfairness

Rawls argued that justice was a redistributive virtue (Rawls 1971:4), and that rights, duties and resources are currently distributed in an arbitrary manner. Rawls adopted the veil of ignorance to correct for arbitrary chance and to stop it influencing people’s deliberations on justice (idem:141). Extrapolating from this premise I argue that, under Rawls’ terms, something is unfair if it can in principle be redistributed but is currently arranged in an unequal and arbitrary manner. First, if something is unequally distributed but cannot be redistributed then under this definition it would be counted as a misfortune to bear a heavier burden of duties, but it would not be regarded as unfair. It is a misfortune that the burdens of reproduction such as pregnancy and childbirth fall solely on females and not on men, but it is not unfair because such burdens cannot be redistributed (men cannot carry a foetus to term even with the help of modern science). Second, if the distribution of rights and duties is not arbitrary then there must be a reason or cause for the distribution. In such circumstances the distribution of rights and duties is not the result of unfairness, but of this alternative cause. Third, if something is equally distributed it must be fair because they are both egalitarian principles; it may be an inefficient distribution, or less than ideal for some reason, but it is not unfair.

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Rawls’ theory ignored how power operates in our societies and in our politics. Behind the veil of ignorance power has no role in decision making. The participants are portrayed as completely unencumbered rational entities. Rawls might have had so little to say about injustice because his theory does not account for power and the role it plays in various forms of oppression. Rawls took as his premise the idea that those behind the veil were free and equal citizens. But he gave no explanation of how to create a scenario where citizens are both free and equal. In this and the subsequent chapter I will examine how the social contract - the metaphor on which Rawls built his theory - has been exploited by the powerful and turned into a tool of exclusion rather than a commonality shared by all members of a given society. Proponent of the social contract presented entering into it as the only rational choice and Rawls also relied on participants behind the veil acting rationally. I will argue that reason has been used as an epistemic tool by the powerful to legitimise narratives that benefit them about who should and should not be included in decision making.

The evidence for gender inequality

In one of the few mentions Rawls made of injustice he said that instances of injustice would be so grievous they would be obvious to all rational observers (Rawls 1971:352). He did not give any examples of a grievous injustice, or specify how he, or we, should identify it if we saw it. Therefore, I will use the veil of ignorance to justify defining patriarchy and racism as cases of injustice. I argue that from behind the veil of ignorance it would not be a rational choice, based on self-interest, to choose to be a women in today’s society, or to choose to be non-white and live in a colony under foreign rule. If society was truly just it would be inconsequential to the participants behind the veil of ignorance which social position they ended up in once the veil had been lifted. The purpose of the veil of ignorance was to remove participants temptation for self-interest. Rawls argued this would ensure the conception of justice would therefore be fair and not disproportionately benefit any particular section of society. Rawls second principle of justice states that social and economic inequalities should be for the overall benefit of all members of a society, and these personal rewards must be attached to positions and offices that are open to all (Rawls 1971:60). An individual's personal circumstances should therefore make no difference to an individual’s life chances, positions and offices and their benefits should be open to all. A person’s liberty, or social and economic opportunities should not be affected by the particularities of their individuality. Whether they are male, female, black, white, homosexual or heterosexual, or none of the above should be inconsequential when considering fair access to

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opportunities. Yet, in our societies today there are costs associated with certain subjectivities that do not apply to others. Despite legal protections there are social costs associated with being a “black woman” born in a current or former colony that do not apply to “white men” born in a former or current colonial power. These cost might be the result of non-strict compliance to the principles of justice, or may be unfair. I argue the costs are not the result of either a lack of compliance or unfairness, but instead discourse and regimes of truth based on ideas of superiority and inferiority among the human population.

Anca Gheaus said a society could be defined as “gender just” if there were no costs attached to gender-neutral lifestyles (Gheaus 2011). Individuals who practice non-traditional gender roles, such as the female being the main wage earner in a nuclear family, should not face additional social or economic burdens that do not affect people who practice traditional gender roles. Currently, this is not the case, societies privilege individuals with male bodies in several different spheres (Haslanger 2000:38). In the UK, women earn on average 13.5 per cent less than men over the course of their careers2_{and in the US women earn 17 per cent less over their careers.}3

A hetrosexual couple in either of these countries that did not wish to practice traditional gender roles would likely suffer a reduction in their joint potential earnings as a result.4_{No country has}

eliminated what is known as the ‘gender pay gap’, although there is evidence that is has been dramatically reduced in the under-30 cohort in some countries.5_{The existence of the gender}

pay gap may be due to a lack of professional respect given to working women. Professions that are dominated by women are held in lower social esteem regardless of the work involved. In fact, if a profession shifts from predominantly male to predominantly female then the level of social esteem for that profession drops (Gildemeister & Wetterer 1992). There are very few, if any, social or economic metrics for which being female is an advantage. The United Nations estimates a third of women worldwide have experienced either sexual violence or a physically violent partner6_{, and global literacy rates are eight per cent lower for women than for men.}7

When presented with such facts it seem unlikely large numbers of rational self-interested actors would voluntarily choose to be a woman from behind the veil. I therefore conclude that the

2_{https://www.fawcettsociety.org.uk/policy-research/the-gender-pay-gap/} 3_{http://www.pewresearch.org/fact-tank/2017/04/03/gender-pay-gap-facts/}

4_{There is some dispute about whether the cause for the gender pay gap is in fact because women taken}

time off to raise children or if it is because women are less likely to ask for a raise or switch companies to further their careers.

5_{http://visual.ons.gov.uk/what-is-the-gender-pay-gap/} 6_{http://www.who.int/mediacentre/factsheets/fs239/en/}

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current relationship between men and women is unequal and therefore fulfills the first criteria of both unfairness and injustice.

An arbitrary distribution?

The next question that needs to be answered is whether the unequal social relationship between men and women is the result of an arbitrary distribution of resources, rights and duties. Although women now enjoy the same basic liberties as men in western liberal societies, men were often granted these rights significantly before their female compatriots. The distribution of power in society is not arbitrary, it is the result of specific ideologies that have their own histories and beneficiaries. Political discourse promoted the idea that a woman was inferior to a man because she was a women, and should be treated as inferior by social and political institutions. It is vital to understand the legitimation narrative of an ideology and the role power plays in the process if we want to understand the non-arbitrary causes of injustice.

The distribution of duties associated with reproduction is the result of arbitrary biological fate. Pregnancy and childbirth are physically demanding and dangerous burdens that fall unequally on women as a result of millions of years of evolution and is beyond the control of any individual, or individuals. Because these burdens cannot be re-distributed I argue they are essentially arbitrary. There is a 50/50 chance that any human egg will develop into a female and as a result incur the burdens associated with human reproduction. This cannot be adjusted for; men cannot carry a fetus to term, it is (currently) scientifically impossible. There are however, social and economic burdens that fall on women (including child rearing) that are not biologically preordained. In the US, rape within marriage was not a prosecutable offense until the 1980s (Pateman 1988:7). The Russian parliament is currently considering a law that would decriminalise domestic violence apart from in exceptional circumstances.8_{Such actions are not}

arbitrary; they are pernicious exercises of power.

Historically, women have been denied political power. Society has for a long time regarded issues that primarily affect women as private matters that are outside of the political sphere and without political solutions (such as the examples above about rape within marriage and domestic violence). The decision regarding the extent of a political institution’s power of

8

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coercion is itself a political one. In the example of rape within marriage and domestic violence, the question is to what extent should power be exercised over the actions of men in the privacy of their home. People in authority to took the decision to preserve men’s freedom in their home at the detriment of providing safety to women in their own home. This was a political decision taken because the protection of a men’s liberty was regarded as more important than the protection of women from physical danger. Male liberty was given more respect than female jeopardy.

Carole Pateman has argued that the lack of respect modern society has for women can be traced back to the legitimation narrative of the social contract (a narrative Rawls re-employed in A Theory of Justice, although he re-named it the original position). The social contract as a political fiction is supposed to show that modern society is a rational choice compared with the only apparent alternative; a Hobbesian state of nature where lives are brutal, nasty and short (Patman 1988:5). Pateman argued that the creation of civic freedom was the creation of the modern patriarchy (idem:2). Under the social contract the state imposes certain constraints on its citizens compared to the unencumbered life in a state of nature. To compensate for this loss of freedom, rights and liberties were granted by the state that now claims the monopoly over force in a given territory. These rights and liberties were granted to men, but not to women. This is what Pateman meant when she said civic freedom was a “masculine attribute” (ibid). Historically in European society there were a great number of titles - such as Duke, Lord or Knight - with relatively little distinction between them (Walzer 1983:253). During the enlightenment a universal title emerged that could be applied to all men: Mr. An equivalent universal title with the accompanying equal respect was available to women.9 The only way to change the level of respect society had for them was to change their title from Miss to Mrs. Women were only granted social respect through their relationship with men (ibid). Respect is denied to the individual women, and instead respect is granted to a social group of either married or unmarried women. These distinctions had substantive consequences and not just philosophical ones. During the 16th and 17th centuries when the social contract theory was being developed women were actually barred from entering contracts (metaphorical or otherwise). Mississippi was the first state in the US to allow women to enter into contracts other than a marriage contract, but not until 1839 and in the UK, married women were not allowed to open bank accounts without their husband's permission until 1975.

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As with legal contracts, so too with social ones. Women were excluded from the social contract based on the same criteria that men were reported to agree to it; rationality. Reason was the intellectual currency of the enlightenment and with the notable exception of Thomas Hobbes all the classic social contract theorists held that women were less rational than men (idem:5). During the enlightenment, questioning an individual’s ability to reason was tantamount to questioning their humanity.

“I know of no other qualities which serve to perfect the mind; for, as regards reason or sense, since it is the only thing that makes us men and distinguishes us from the brutes” (Descartes 1996:2)

To deny that women had the full force of rationality enjoyed by men was to argue they were lesser humans. The concerns of men were rational, objective and of political importance. The concerns of all women were irrational, subjective and unworthy of political attention (Pateman 1988:12). Man came to represent the positive and neutral, and women came to represent the negative (de Beauvoir 1949:15). These distinctions placed women in the category of ‘the other’, something to be controlled and not granted equal social respect. “Only men, that is to say, are individuals” and deserve the rights and respect granted by society to individuals (Pateman 1988:6). Women were denied the right to vote, to hold property and enter into contracts. Women were denied the equal respect society granted to men, denied individual rights, and therefore had their subjectivity repressed. Those in power dismissed women’s subjectivity and took it upon themselves to define what being a woman meant. Women were (and perhaps still are) treated not as individuals - with the rights that would entail - but as a group devoid of subjective expression. Men are a collection of individuals with complex subjective identities, and are treated as such. Women are regarded as one part of a whole, discourse about women can be applied to any particular female with no regard for the subjectivity, which has been defined for them because they are members of a certain social group. Those with more power defined it for them without consultation.

This reduction of a female individual’s subjectivity to that of an inferior other has had tangible consequences. Cambridge University did not open a college for women until 1869 (Girton College), and did not issues degrees to women until 1948.10_{The result of generations of}

intellectual segregation is that today, despite rule changes to allow parity of participation in

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education children as young as six years old believe that boys are more likely than girls to be “really, really smart”, despite there being no scientific evidence of any difference in intelligence between the sexes (Bian et al 2017).

According to Pateman, because issues that predominantly affect women are regarded as non-political, women are isolated from the political sphere. Because their concerns are defined as non-political, therefore they should stay out of politics (Pateman:1988). The idea that women should not be involved in politics or seek power remains a powerful discourse in public life even 100 years after women gained suffrage in most Western liberal societies. During the 2016 US presidential election, Hillary Clinton faced regular sexist attacks from both the grassroots of the Republican party campaign and its figurehead, Donald Trump. Despite Clinton being called the most qualified candidate to stand for election in modern times11_{Trump said the only thing}

Clinton had going for her was “the woman’s card” without which he claimed she would only win 5 per cent of the votes.12 Perhaps unsurprisingly, Clinton has subsequently claimed misogyny played a role in her defeat.13_{Even when given protections that ensure equal legal participation}

in the political process, unequal treatment persists, and not arbitrarily. Such unequal treatment is the result of narratives of inferiority and people’s response to them. The treatment of women in our society is unequal, but it is not arbitrary, and therefore cannot be defined entirely as unfair.

Sociopolitical injustice

Despite now sharing many of the same rights and liberties as men women still face such oppression because fairness before the law is not enough. Many feminist theorists believe that cultural and social attitudes towards women have not been adequately addressed, a view neatly summarised in the slogan “the personal is political” (ibid).

Any belief structure based on social practices (in this case the belief in the inferiority of women) has to be constantly ritualised and reinforced in social life if it is to survive (Fields 1990:112). Such narratives survive when repeatedly recreated and reinforced by the dull drudgery of life:

11

https://www.bloomberg.com/politics/videos/2016-07-28/obama-clinton-most-qualified-ever-to-be-president

12_{http://time.com/4357406/hillary-clinton-sexist-donald-trump/}

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“Groups suffer as a consequence of often unconscious assumptions and reactions of well-meaning people in ordinary interactions, media and cultural stereotypes, and structural features of bureaucratic hierarchies and market mechanisms - in short, the normal processes of everyday life” (Young 1990:41)

In the everyday life of Western liberal societies women are oppressed as, and because they are, women (Haslanger 2000). This takes on a variety of forms from unequal respect to lower pay. Eventually, the prevalence of the actions provide legitimacy to the narrative. People have a tendency to believe that current social relations in their society are the natural order of things (Fields 1990:106). If women are treated unequally, they are presumed to be unequal, and once this belief has taken hold it can be very difficult to convince people otherwise. Back in 1949, Simone de Beauvoir asked rhetorically: “Are there women, really?” (de Beauvoir 1949:13). By this de Beauvoir did not mean that there was no distinction between males and females, or trans or inter gender people, but that the distinctions we place on people are more the result of socialisation rather than biologic destiny. Walk through any park in our society, de Beauvoir continued, and it is possible to see what we regard as “women”. It is evident that there are people marked out as the other, as possessing certain characteristics that set them apart negatively as women (idem:15).

Fifty years later Sally Haslanger elaborated on this point. Using an analytic approach, Haslanger defined women in the following way:

“S functions as a women in context C iff:

i) S is observed or imagined in C to have certain bodily features presumed to be evidence of a female’s biological role in reproduction;

ii) that S has the features marks S within the background ideology of C as someone who ought to occupy certain kinds of social positions that are in fact subordinate (and so motivates and justifies S’s occupying such a position); and

iii) the fact the S satisfies (i) and (ii) plays a role in S’s systematic subordination in C, i.e., along some dimension, S’s social position

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in C is oppressive, and S’s satisfying (i) and (ii) plays a role in that dimension of subordination.” (Haslanger 2000:42-43)

Haslanger sought a definition of women as a social class that suffered oppression because of perceived differences rather than actual differences (idem:37). She did so with the express purpose of promoting a more gender just society. Women, as a social construct, are defined (under Haslanger’s terms) as a class of society singled out for oppression because they are perceived by society to possess certain physical traits that mark them out able to perform the female’s role in reproduction. “One is marked for application of oppressive pressures by one’s membership in some group or category” (Frye 1983:15). How, and by whom, membership of a group or category is decided, and the consequences of membership are the result of socially constructed and socially contingent behavioural expectations, norms and narratives. Under Haslanger’s definition females who are not subject to oppression are not in the social class of women, they remain female, but they have escaped the categorisation of ‘woman’ to become free and equal citizens and not subject to the oppression faced by women. This approach has been criticised by those who want ‘women’ to be an inclusive category of people and for that reason favour self-identification (Jenkins 2015). I argue Jenkins’ criticisms possibly hold more weight in the short term where being inclusive and gathering support has benefits for those with the political identity of women. But in the long term, with the aim of creating a gender just society, I argue that Haslanger’s definition is more useful because of its focus on oppression rather than identity. Haslanger showed the importance of social forces when discussing injustice. Who is categorised into which social group, who decides and what the consequences of such a categorisation will be are all social factors. Who society chooses to class as ‘the other’ and how it treats ‘the other’ are not arbitrary decisions.

It is ominous that even a process fundamental to the existence of the species as reproduction can be turned into a negative and used to disenfranchise huge sections of the population. It appears there are no bounds to what de Beauvoir called a fundamental category of human thought; the ability to create otherness (de Beauvoir 1949:16). In today’s society, the physical characteristics human beings are born with ascribe them to certain social positions that come with socially expected behavioural norms and oppressions (Pateman 1988:10). In this context, oppression is a constraint on individuals and caused by one group actively subordinating another for its own interests (Jagger 1983:6). This is not arbitrary, women are oppressed because they are women, by men who are able to oppress because they are men (Pateman

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1988:3) and do so because it benefits men. Women are not recognised as worthy of the equal political recognition. Women earn less, are respected less, and are denied access to positions of power because, and only because, they are women.

The treatment of women in our societies is unequal and non-arbitrary. I have argued in this chapter that society’s treatment of women is the result of discourse dating back to the social contract that defines women as inferior and legitimises their treatment as such. This goes beyond unfairness as I have described it. In the next chapter I will examine the issue of racism and colonialism in a similar manner.

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Chapter Three: The injustice of race

“Anyone who continues to believe in race...might as well also believe that Santa Claus, the Easter Bunny and the tooth fairy are real.” - Barbara Fields.

In this chapter I will argue that in Western liberal societies there are social costs attached to having higher quantities of melatonin and that these costs are not arbitrarily distributed but are specifically directed at non-white people. I will examine how the idea of race has been created, the actions such a narrative has legitimised, and how it has led to oppression. I will again examine how the social contract was used as a tool of exclusion, but instead of disenfranchising women as discussed in the previous chapter, this next section will look at how the social contract was used against non-Europeans. As in the previous chapter I will argue these costs are the result of deliberate social and political structures that favour some people in society to the detriment of others. If we lived in a truly just society this would clearly not be the case. Therefore I am led to conclude that our societies are unjust and not merely unfair.

The cost of melatonin

At all levels of the UK’s criminal justice system, individuals from Black, Asian and Minority Ethnic (BAME) backgrounds are overrepresented relative to national demographics.14_The

British police are 28 times more likely to stop and search a BAME individual than a white person, while 25 per cent of the UK’s prison population is non-white, despite only 15 per cent of the general population being classed as such (ibid). In the US, the non-white prison population stands at 41.4 percent15, but white people make up 77.1 percent of the total US population.16 When it comes to criminal justice being non-white is a clear disadvantage. Non-whites are also dramatically underrepresented in positions of political power. The US elected its first black president in 2008 but the UK, Canada, France, Germany, Australia and a host of other countries have yet to reach this milestone. The overrepresentation of non-whites in criminal justice systems, and underrepresentation in positions of political power hints at a lack of respect these societies give to people who are not white. Either public institutions such as schools do not give non-white people the skills they need to be successful in their society or they have these skills and are not taken seriously. Both of these conclusions is deeply troubling for social justice.

14_{http://www.irr.org.uk/research/statistics/criminal-justice/} 15_{https://www.bop.gov/about/statistics/statistics_inmate_race.jsp} 16_{https://www.census.gov/quickfacts/#headnote-a}

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This lack of respect breeds economic inequality. Despite laws that forbid workplace discrimination there is a pay and wealth gap between white people and non-white people. In the US, those in the “black middle-class” earn seventy cents to every dollar earned by white colleagues. Because of historic imbalances the wealth gap between the black and white middle classes is even more stark. Wealth includes measures such as property ownership and financial assets and for every dollar of wealth owned by the white middle class, the black middle class owns only 15 cents (Oliver & Shapiro 1995:86). Thomas Piketty showed the importance of wealth (rather than income) in perpetuating economic inequality. Assets passed down from generation to generation continue to accrue value and provide economic stability and potential capitalisation that is hard for those who do not inherit wealth to match. Because of this economic inequality persists even if wages converge (Piketty 2013). To compensate for the historic unequal economic treatment of white and black people in the US - including forced labour, wage repression and discrimination - the required reparations would be greater that the current gross domestic product of the US economy (America 1999).

This overview of the discrepancies between white and non-white members of society is sufficient to demonstrate society's unequal treatment of white and non-white people. Despite laws designed to ensure the equal distribution of the rights and duties of social cooperation non-white people still face social costs due to the colour of their skin.

Non-arbitrary ideology

In this section I will argue that the unequal social and economic costs that result from darker skin are not the result of an arbitrary distribution of rights or resources. Today, rights and duties are protected in law for both white and non white citizens historically however, non white people have been legally disenfranchised. I will now examine how this disenfranchisement took place before I explain why discrimination does not begin or end with the attainment of legal rights.

In the US, the Civil Rights Act of 1964 outlaws discrimination on the ground of race, and, intriguingly, colour (although the bill does not stipulate the legal difference between race and colour).17_{Despite this legal protection for the equality of rights and duties, the oppression and}

discrimination of women and people of colour still persists. Charles Mills has argued that is this

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is not an accident. According to Mills, white supremacy is a political system like any other that seeks to answer the question of who should have power and why (Mills 1997:3). Mills has argued that the current distribution of power both globally, and domestically in Western liberal societies, can be theorised as a contract between, and for the benefit of, white people (idem:7). The analogy can also be used as a descriptive tool to explain the genesis of society into its present condition and a way to examine normative judgments about justice in the context of race (idem:5). All white people benefit from the contract, Mills said, even if they were not metaphorical signatories to it (idem:11). As a deal between and for white people, the social contract and its social institutions disproportionately benefit white people because non white people were excluded from the negotiation of it, and subsequently the benefits that arise from it.

As discussed in the previous chapter the analogy of the social contract presented Western-style politics as a, and therefore the only, rational choice. Discussions of the social contract were framed as a dichotomy between liberal, democratic nation states on one side and a Hobbesian state of nature on the other. Western politics is rational; all alternatives are irrational. In Two Concepts of Liberty, Isaiah Berlin wrote about how rules of reason create ideas of what is necessary and what is contingent (Berlin 1969:14), and conclusions reached through reason are regarded as necessary. This approach rejects the idea that rational conclusions can be contingent and therefore hints at the idea that these conclusions must be universal and fails to recognise that reason has been constantly re-invented (Eze 2017:17). By presenting western politics as the, and therefore only, rational choice it conversely defines any other system as irrational and by extension any person who entered into that system as equally irrational. In The Racial Contract, Mills argued the same rational-irrational dichotomy had been applied to societies as well. On one side of the dichotomy you have a situation where politics and society exist hand in hand. But, where Westerners saw politics that was incompatible with their own traditions they dismissed it as pre-political, pre-logical and pre-social and analytically reduced this foreign politics to no more valuable than a Hobbesian state of nature, which any rational individual would want to leave. The metaphor of the social contract, and its twin racial contract, denied the existence, or even the possibility, of a society or politics existing before the contracts were entered into (Mills 1997:13). Politics and society were a result of the contract and any society without a recognisable social contract was assumed to be primitive and pre-political. This oversimplification of foreign traditions and the assumption about their undesirability helped legitimise the idea of colonialism as a civilising mission. Western social institutions classed themselves as socio-political beings imbued with reason (at least the male portion of the

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society), but they did not extend this definition to non-Europeans (Eze 2011:62). This distinction helped create a power dynamic based on an ideology of superiority/inferiority. Of those who have, and those who have not. Those who have reason are socio political beings who wield political power, those who don’t have reason are pre-political beings who should not wield political power.

This narrative of who had and who did not have reason fed into an ideology in which only white men were regarded as respected as socio political beings and therefore deserving of political power. The ideology professed that those who lived in Western style societies had reason because they had made the rational decision to create such a society, were therefore socio political beings and should have political power. Those who did not live in Western style societies must lack the required rationality to make the correct decision to create such societies, are therefore not socio political beings and therefore should not have political power. It is a circular and self-justificatory argument, but Mills has argued it has been extremely influential around the globe and throughout history.

Implications of contract theory

A contract is an inherently exclusionary situation. Non-signatories are politically “othered”. Legal rights and duties owed to signatories are not owed to non-signatories. The legal protections of the social contract include rights to your share of the benefits of social cooperation including the right to own property and the right to have your say in how that cooperation is governed. Once a distinction has been made between signatories and non-signatories difference behaviours are socially expected of and towards people depending on whether they are a signatory. As non-signatories, non-white people were denied the benefits of social cooperation, and the social esteem these benefits granted to an individual. Non-white people were, as Mills put it, “relegated to a lower rung on the moral ladder” (idem:16).

This moral hierarchy supported a political hierarchy that was established by the racial and social contracts. Society was supposed to treat full rational socio political beings in a certain way. But this respect and esteem was not extended to less rational, non-political beings. The political fiction that cast Western society as the rational choice became a self-legitimising narrative of Europeans as superior, rational, socio-political beings. Decisions taken by those defined as rational become de facto the correct rational choice because they were made by rational people