6.9.1Walzer’s plurality of distribution systems

The third prominent figure to help stake out the area of Anglophone moral philosophical debate on justice is Michael Walzer, who gave a seminar together with Robert Nozick at Harvard in 1971 on ‘Capitalism and Socialism’ from which Walzer’s 1983 book, Spheres of Justice: A Defense of Pluralism and Equality, finally issued. The first sentence of the first chapter of this work names its subject as “distributive justice”. There is no mention of commutative justice in the entire book. This very first paragraph calls “human society” (ahistorically, anthropologically) a “distribution community”, referring then immediately to the “distribution and exchange of things that brings us purposefully together”. So why isn’t human society, first and foremost, an exchange society? The glaring imprecision in Walzer’s statement is not accidental, but essential for his entire study, for it relies on treating the “exchange of things” as distribution, thus allowing the issue of commutative justice, which is concerned above all with the fair exchange of things, to disappear from sight. The sleight of hand is hardly noticeable, for who would want to deny that the many exchange transactions of goods results in a distribution of material goods? Isn’t it pedantry to insist on the distinction between exchange and distribution, (and ultimately between two distinct modes of presencing: δύναμις and ἐντελέχεια)? What hangs on this distinction, anyway? And, due to absence of any socio-ontological thinking, nobody seems to have noticed anything missing so far. All the worse for Anglophone moral thinking on justice!

Walzer’s first chapter goes on to discuss a “theory of goods” in which material, economic goods play the dominant role. The market is treated as “one of the most important mechanisms for the distribution of social goods”. Again exchange is treated as a mechanism and as distribution. By contrast, as has been shown in Chapter 5, exchange is to be grasped hermeneutically as an interplay of potentials, of powers among players striving for gain in which the outcome is uncertain, whereas, viewed from the total output of the social exchange process, the play of exchange, as movement itself a kind or ‘sight’ of ἐνέργεια, results in an actual distribution of material goods. The exchange process is where the exchange-value of goods becomes actual as a power to acquire another good, which is a gain for both parties to the transaction, but even actualized exchange-value must be distinguished from total social distribution. As means of exchange, and not as a ‘means of distribution’, money must be conceptualized as a reified value-form mediating the ongoing exchange metabolism of the economy. The connection between commodities as value-form and money as value-form is made through a dialectic (cf. e.g. Plato’s Sophist) between ontological concepts that grasp the being of commodities and the being of money. In Walzer’s scheme of things, however, money is made invisible as a means of exchange; it is subsumed beneath the determination of means of distribution. Instead of being a value-form as a reified social power, money as a tool, a “mechanism” for social distribution is muddled up with many other distribution systems of social values such as social status and social honour systems in all kinds of societies all over the world and at all historical times.

Hence, although Walzer quotes Marx on money copiously throughout his book, he nowhere grasps the socio-ontological concept of money in its significance. The issue of the free interplay on the markets mediated by money that is linked to the very possibility, historically, of the free individual, thus necessitating consideration of the commutative justice of this interplay (and not merely of its just distributive result), is glossed over and goes entirely unnoticed. An entire problem for the possibility of justice is made to disappear as a non-issue, and Walzer contents himself with gathering materials and examples from many different sources to underscore, in sociological fashion, his thesis of a plurality of spheres of justice. No attempt whatever is made to undertake a connected conceptual analysis of these different spheres that would bring their mode of being as such to light. A plurality of spheres of justice constituted by a disjointed jumble of different kinds of distributive justice jockeying alongside each other is supposed to justify Walzer’s appeal for pluralism, while at the same time ignoring the deeper-lying conflicts between individual freedom as a social interplay of powers, and criteria for an attained, actual distribution of social goods of all kinds. Social and political power struggles can be talked about endlessly, drawing on historical and sociological material, but in this way the entirely familiar phenomena of power and power struggles can never come to their adequate socio-ontological concepts. Hence, for example, in Walzer’s hands, Hegel’s ontological phenomenology of a “struggle for recognition” becomes a bland “sociology of titles” (Chap. 11).

6.9.2Conceptions of distributive justice and the welfare state

The elaborator of thinking on distributive justice after Plato, Aristotle, himself postulates four different criteria for the distribution of the goods of living, including, among others, material goods, namely: free birth, wealth, nobility of birth and merit/ability/excellence (ἐλευθερία, πλοῦτος, εὐγενεία, ἀρετή́ Eth. Nic. V 1131a27ff; cf. ii) above). Of these four, only two have weight in the modern era as justified criteria, namely, free birth (every human is born free since the century of the French Revolution and human rights) and merit and ability (an individual deserves a portion of wealth proportionate to his or her abilities), whereas wealth as a criterion for distributing goods is valid today mainly only among investors owning parts of companies, and nobility of birth has lost any traction as a criterion for allotting wealth and still has application perhaps only in distributing the good of respect and honour in certain traditional social customs.

Egalitarian doctrine proceeds on the basic premise of free birth as the criterion for the distribution of total social material goods: because each individual human being is simply born free, it has putatively a right to an equal share in the social product, and the political constitution of a just society must be such that equal apportionment of produced material goods is guaranteed and realized. Utilitarianism is concerned with maximizing the utility or happiness of a society which comes down ‘materialistically’ to maximizing the total income of society’s members: that distribution of total social material output is just for which its maximization is attained. Rawls proposes a middle course, captured by his “difference principle” which postulates that deviations from equal distribution of total material output are just insofar as the material standard of living of the “least advantaged” is raised. In all three of these positions on justice, society is regarded as a kind of machine for producing material well-being. For such a conception, individual freedom becomes relativized to considerations of productive efficiency, and it is precisely in such terms that individual freedom has come to justify itself: ‘we’ as a whole are better off materially by virtue of the productive efficiencies of incentivized individual freedom.

Moreover, since the orientation is toward maximizing and sharing out total material output, the secure precalculability of such output gains in weight. The total productive machine called society, to be just, ostensibly should securely produce well-being for all, and the riskiness of freedom in its social interplay becomes a negative to be avoided. Rather a bird in the hand than two in the bush. The egalitarian, Rawlsian and utilitarian conceptions of distributive social justice meet the requirements of social policy-makers advising the government on issues such as redistributive taxation policy, and thus debates among moral philosophers over the criteria for just distribution of total social material output become ‘politically relevant’ and ‘practically useful’. Apart from the issue of supposedly inviolable individual human freedom, even the justness of distribution becomes subjected to criteria of measurability and practicability. An ontological determination of human being itself, that is, that the mode of being of the human being is freedom, is not present in the debates weighing up the pros and cons of different just ‘distribution models’.

In contrast to a precalculable distribution of material well-being, the gainful game as an interplay of estimating powers has an uncertain outcome for each of the players and even for the totality of players. The powers at play start with individual powers and abilities that have to be validated on the market in a mirror game of estimation. The products of labour, too, have to validate their power as exchange-value on the market. Then, as has been shown in section 6.8 above, there are the derived social powers associated with each of the reified value-forms: the power of capital, of organized wage-labour, of finance capital, of landowners, each in a plurality. The fully-blown gainful game is generated by the exercise of the freedoms of private property under the motivation of earning an income of some kind. Individual freedom of the person is therefore a power, potency and potential, and not the finished presence, or actuality, of an achieved output of some kind or other (such as GDP or total well-being). For this reason, the libertarian position on justice is antithetical to all those positions on distributive justice that demand ‘just’ shares of the total social material product according to some criterion or other. If some version of distributive, so-called social justice holds sway, the freedom of the gainful game motivated by individual striving must be clipped and (partially) suppressed to fit an ostensibly just distribution of total social output, and the income outcomes of the gainful game must be redistributed, which is the socio-ontological origin of the social welfare state. It is therefore a major issue for theories of distributive justice to meet the challenges posed by an ontological hallmark of human being, viz. its freedom of self-movement.

One strand in this issue arises especially for traditional and Rawlsian egalitarianism when arguments are made along the lines that there are players in the gainful game, or on its sidelines, who, ‘through no fault of their own’, are at a disadvantage, e.g. if they are chronically ill or disabled, or simply have below-average abilities to offer to the market. Such natural disadvantages, perhaps reinforced by the social environment of someone’s upbringing, are said to place such players at an unfair disadvantage that demands a compensatory redistribution of the output of total social production. But does the essential freedom of human being in itself demand such a compensation for unequal opportunities in the gainful game due to the natural distribution of individual abilities or the differences in social environment into which each individual is cast? In response to this question it must be pointed out that individual human freedom comprises not only the freedom to cast one’s own life of one’s own free will, grasping the opportunities that arise (or failing to do so), but also having been cast into a situation over which the individual has no control and for which no instance in particular can be blamed or praised. An individual cannot choose its parents, its natural innate abilities, its place of birth in a certain country at a certain historical period, the customs and traditions into which it is born, the Zeitgeist of a time, the way of thinking of an epoch. It is simply thrown, and this thrownness of having-been-cast is part of its freedom, namely, the negative side. Only from the present can an individual cast into the future and shape its own self in coming to terms with, exerting its own powers and making the best of, how it has always already been cast.

There is therefore no justification for a redistributive justice to even out the inequalities in the distribution of individual abilities and disabilities, but there is a case to be made for the injustice of social rules of interplay that unfairly rig the individual’s starting-position in the gainful game, such as social discrimination where the abstract dignity of free personhood is denied. This is an important issue to which we shall return in section 6.12 below, taking care not to confuse issues of fake distributive (social) justice with genuine social (in-)justice in the proper sense relating to discrimination.

6.10.1The legitimate founding of a state

Nozick’s 1974 book has set in train debates on various issues that continue to the present day. One such issue is the legitimate founding of a state with which Nozick deals in arguments against anarchism (that denies the legitimacy of a state altogether) within the framework of a notion of a Lockean social contract. The starting-point is therefore a ‘state of nature’ in which the plurality of individuals has natural rights of free personhood and property ownership, summed up by the Lockean formula of “Life, Liberty and Estate”. Nozick conceives the state basically as an instance having an effective monopoly of coercive power over the inhabitants of a certain territory. Its role is to protect the lives and property, including the contractual intercourse, of its subjects and hence to exercise force against those who commit acts of violence, theft, fraud and breach of contract against its citizens.118 In his argument against anarchist principles, Nozick is at pains to show that a state can be legitimate even without the consent of all its citizens. He therefore starts with the notion of individuals hiring private protection agencies to enforce their rights which is then widened to a dominant protection agency becoming gradually a state with “an effective monopoly on the use of force in its territory” (Vallentyne 2006.). The driving force for this gradual widening of a private agency’s coercive power is that more and more individuals give their consent to subjecting themselves to this instance for the sake of their own protection. In a state of nature, by contrast, the individuals are said to have a right to protect their own lives and property, including by force, so the emergence of the state is a matter of a transfer of natural rights to a superior social instance which then monopolizes the effective use of force against offenders’ bodies and their possessions.

The fallacy in this state-of-nature and social-contract way of arguing lies in the very imagining of an historico-chronological emergence, as if rights inhered in individuals who could only transfer them by consent. The dilemma can be seen already by considering that individual rights, and their enjoyment and exercise, are always already social; they only make sense for a plurality of individuals sociating with each other on the basis of their own free will. Free sociation takes place in the first place via an agreement called contract, according to which the contracting partners give their word to perform such-and-such for each other. Any contractual agreement is exposed to the possibility of dispute over what has been agreed. Even someone accused of blatant theft or robbery may claim legitimate acquisition of the thing allegedly stolen. Who is to decide? This is the crucial question, for even if a victim of theft takes back from the thief what has been stolen off him, who is to say that the victim is himself not a thief? Or if someone defends themself against assault, who is to say that he himself was not the assailant when each accuses the other and it is a case of word against word? Or if fraud has allegedly been perpetrated, who is to decide whether this is truly the case if the fraudster denies any wrong-doing?

Any interchange between individuals that has infringed the fairness demanded of transactions must be adjudicated by a superior third party above the fray of the two parties’ self-interests, to which both parties must submit for judgement. Hence the demand that the judge be impartial. The interchange itself has generated something beyond the individual wills of the two parties to the agreement (or non-agreement), a ‘we’ with a will to a fair and just transaction that cannot be located solely in either of the parties, nor in the sum of the two individual wills, nor even in witnesses to the transaction, since one or other of the two parties may contest their evidence. Individual freedom and its exercise in an intertwining of free wills in an elementary ‘we’ necessitates both the will to fairness of the transaction and the will to have the fairness of the transaction adjudicated by a third party in the case of dispute. The case of dispute can never be ruled out in the mutually binding and intertwining exercise of free wills. In willing a transaction with each other, the two free-willed parties will willy-nilly a ‘we’ and the adjudication by a judge of any dispute that may arise, and have therefore implicitly already submitted to a judge as a legitimate instance.

This is already the kernel of an incipient government, no matter whether the individuals explicitly consent, in contractarian manner, to subjection to a superior instance or not. The very concept of individual freedom demands, via several mediations, subjection to impartial, superior, adjudicating instances which collectively may be called government or the state, unified under the initial determination that the judiciary is dedicated to righting (alleged) wrongs that inevitably occur wherever the freedom of interchanges among individuals is lived out. The state as protector of life, liberty and property is legitimate by virtue of its conformity to the concept of human freedom, i.e. the essential human condition of freedom in its power interplay, which is, at its core, individual freedom, regardless of whether it is explicitly consented to by individual citizens. If the term were not so hackneyed by common-sense, one could say the nature of human beings is to be free.

Those who argue over justice and legitimacy in the framework of a social contract theory have overlooked that a critique of the notion of a social contract is bequeathed to us by Hegel’s Philosophy of Right, a work that refuted basic postures in recent Anglophone debates 150 years in advance. To argue from a speculative concept of freedom, of course, is anathema to Anglophone mentality, which is quick to level the charge of idealism. But freedom, if it is anything at all, is first and foremost an idea, that is, a ‘look’ or ‘sight’ of the being of human being itself, an ontological sight that can come into view as an insight for the thinking philosophical mind.

The above line of thought focuses on the conceptual (and not merely practical, ontic) necessity of a judicial instance that raises individual free will to a higher level beyond itself, and not on the necessity of a protective agency for protecting the lives and property of individuals, and therefore it deviates from Nozick’s imagined historical line of reasoning about protective agencies which, as Murray Rothbard points out119, is faulty anyway. Such protection can well be provided already by private security forces without these attaining the status of a rightful, superior instance. Indeed, the actions of private security forces are just as much subject to judicial scrutiny as those of private individuals, and conflicts may arise when a private security guard uses force against any person when fulfilling his protective duties, which conflicts in turn require adjudication by the acknowledged legitimate judicial instance to judge whether rights of person or property have been infringed. Similarly, a police force exercising physical force over a populace in the name of protection of life and property is not the kernel of the state, for this function can be exercised also privately. Rather, a police force is, in the first place, the agent of the judicial instance which is charged with forcibly bringing parties to a conflict over an interchange before a judge when one or both of the parties refuses to appear. The physical force or threat thereof is just and rightful because the resolution of conflicts over interchanges among free persons itself is justly referred to a judicial instance. It is therefore an erroneous ‘materialist’ view to define the state in terms of holding a monopoly over physical violence, for the use of physical force or the threat thereof has to be legitimated cogently in the name of freedom.

6.10.2The original appropriation of (landed) property

Nozick’s theory of justice is a libertarian theory modelled on the Lockean fundamental rights of the individual to “Life, Liberty and Estate” and hence is weighted toward the freedom of private property. In line with social contract theory, an imagined, fictitious history is fashioned to account for how private property comes about in the so-called state of nature. Nozick’s version of basic rights therefore includes “rights of initial acquisition: the right to acquire full property rights in unowned things...” (Vallentyne 2006). For any historical theory of justice it is a problem to account for the original appropriation of property. Once property has been appropriated it is easy enough to account for its just transfer through contractual agreement between private property owners. “Locke’s version of [the right to initial acquisition] requires that one ‘mix one’s labor’ with the thing and that one leave ‘enough and as good’ for others” (Vallentyne 2006), where the provision ‘enough and as good’ is termed by Nozick the “Lockean proviso”. Since Locke there has been much debate over appropriation of property by ‘mixing one’s labour’ with things, although, if one has any sense of history, the issue here is the original appropriation of landed property not by individuals as such, but by groups of people such as tribes. Only subsequent to the appropriation of a territory by a group can one speak sensibly of the allocation, perhaps, of land to individuals as private property, again a fictitious history. Hence the issue for rightful original appropriation in the Lockean proviso concerns land ownership and the social power to derive income from landed property as ground-rent.

All original appropriation of land back in the mists of time is most frequently an act of force where a group occupies land (a hunting ground, a fishing ground, pastures, fields, etc.), thus pushing out some other group, i.e. if one does not imagine the geographical spreading of a species called homo sapiens over the Earth. Wars and skirmishes over land may then establish habitual rights of occupancy over time in which the original struggles for the land are forgotten. For the original appropriation of land historically, right is might in the situation of a ‘state of nature’ in the sense that there is no acknowledged superior instance to appeal to for adjudication in the case of conflict, which is therefore, if diplomacy between the parties fails, decided by force of arms, perhaps according to acknowledged rules of war. As is apparent today, compensation for forceful and unjust occupancy of land by invasion only has relevance when the struggles over the appropriation of land are relatively recent historically and the details of previous land occupancy and land-use still alive in the memory, i.e. when it is ‘as if’ it were a case of a civil dispute over land rights rather than of land appropriation by conquest. Any theory of justice, such as social contractarianism, is on shaky ground in arguing historically, or even theoretically, from a purportedly innocent original appropriation of land. But such simple-minded thinking has the charm of easy comprehensibility.

Furthermore, it is a matter of mere historical fantasizing to imagine an original appropriation of land as individual private property. Groups, tribes, peoples originally appropriate land by force which then become their territory, within which land may (or may not) then be allocated to individuals, such as when a king rewards a lord, or a lord rewards a true vassal by awarding a stretch of land to him which then becomes a family estate that is handed down over generations through a line of succession. To speak of an acquisition of landed property by ‘mixing one’s labour’ with land is a quaint notion, since territories are appropriated originally by mixing the bloody labour of warriors with the soil. Private landed property and the trade therein by transfer of title and lease are relatively recent historically, and, only once private landed property is established can its rights be determined as a matter of commutative justice which only makes sense in a society in which interchange is customarily practised.

Once the original acquisition of private property is widened beyond the appropriation of land it is easy to account for it, because private property in things can be acquired by hiring out one’s labouring abilities. Such reified private property is then an individual’s ‘estate’ which may be further accumulated. Upon further accumulation by means of saving, it may even become entrepreneurial or finance capital or landed property. The entire system of private landed property depends on the establishment of the various fundamental value-forms required to constitute the gainful game. Today, the entire surface of the Earth, its land and even its seas, has pretty much been carved up as sovereign state territories within which the rights of private landed property and sovereign territorial ownership apply.

For a discussion of issues of justice in today’s world it is best to restrict it to those societies in which the socio-ontological constellation of the gainful game holds sway. Admittedly, this socio-ontological constellation of historical being can only be seen by the philosophical mind; it is invisible to historians, journalists, politicians, empiricists, moralizing philosophers, etc. who are blinded by its obviousness. Nevertheless, to say that today there is such a thing as a globalized capitalist economy is to admit implicitly that underlying it all there is a definite value-form-determinate constellation of social being. A focus on a socio-ontological constellation is the philosophical alternative to other approaches to the question concerning justice, including social contractarianism in particular. As I have repeatedly said, all these alternative approaches do not see the ontological difference at all.

6.10.3An attack on libertarian freedom conceived as individual caprice

Hugh LaFollette’s paper, ‘Why Libertarianism Is Mistaken’,120 offers an attack on libertarianism which is instructive for bringing the issues to light. His article launches with the assertion, “Central to libertarianism is the claim that individuals should be free from the interference of others. Personal liberty is the supreme moral good.” (LaFollette 1979) Why “moral good”? It should be noted that moral philosophy is concerned with what ought to be the case, and not with the socio-ontology of what is as such, i.e. the whatness of whats and the whoness of whos. This is a general weakness of Anglophone moral-political philosophy: it is an ought hovering over an is, with only tenuous ties between the two and without the ‘is’ itself being interrogated. It is therefore constantly endangered by that favourite, self-delusive, futile pastime indulged in by well-meaning people: Utopianism. The question concerning justice is, properly speaking, not a moral question, but one concerning what social interplay among human beings conforms to the essence, nature or concept of human being itself. Unjust social interplay violates the mode of being of human beings as such and, as established and entrenched social interplay, can lead to a degradation and destruction of human being itself. Such degradation can proceed subtly without being noticed by people themselves, who may even unwittingly will and want it. The issue for any theory of justice is the historical possibility of a society in conformity with freedom, a ‘look’ of social movement. It cannot be assumed that ‘people’ unconditionally want to be free, and a theory of justice cannot proceed by arguments of the kind, “Most people think that x ought to be the case”, which degrades the task of thinking to an expression of mere opinion.

LaFollette provides an example of how libertarian liberty is purportedly restricted: “The slave-holders’ freedom [e.g.] was justifiably restricted by the presence of other people; the fact that there were other persons limited their acceptable alternatives. But that is exactly what the libertarian denies. Freedom, he claims, cannot be justifiably restricted without consent. In short, the difficulty is this: the libertarian talks as if there can be no legitimate non-consensual limitations on freedom, yet his very theory involves just such limitations. Not only does this appear to be blatantly inconsistent, but even if he could avoid this inconsistency, there appears to be no principled way in which he can justify only his theory’s non-consensual limitations on freedom.” (LaFollette 1979) The very nature of freedom, from the outset, must take into account that there is a plurality of human beings living with each other on Earth and that the question concerning justice arises only when there is such a plurality, for justice concerns always sociation with others. To imagine that there is first a solitary, free individual able to enjoy boundless liberty, who is then restricted in its liberty by the presence of others, is a rather bovine misrecognition of the very nature of freedom.

“So imagine with Hobbes and some libertarians that individuals are seen as initially being in a state of perfect freedom. In such a state, Hobbes claims, ‘nothing can be just. Right and wrong have there no place.’121 To introduce right and wrong of any sort is to put moral limitations on individual freedom. To that extent, everyone's freedom is restricted.” (LaFollette 1979) The question concerning justice simply does not arise in an imagined state of nature, for it is a state of ‘might is right’ and anything but a “state of perfect freedom”. LaFollette confuses freedom with the arbitrariness of individual will that is able to realize itself without resistance. Therefore, contrary to the assertion that the introduction of right and wrong puts “moral limitations on individual freedom”, it is only when right and wrong are “introduced” that freedom comes about, for freedom means just sociation of free individuals respecting each other as persons and entering into interchanges with one another on the basis of mutual agreement and with a view to mutual benefit. Freedom conceived erroneously — and childishly — as the arbitrary exercise of individual will is always restricted by justice by virtue of sociation itself being a power interplay. An individual does not have to “consent” to respecting others as likewise persons and private property-owners; rather, it is a demand of freedom to acknowledge other individuals as likewise free. LaFollette’s line of argument is that, since even the rights of personhood and of private property require a non-consensual restriction of individual liberty (conceived as the caprice of individual will to do what it wants), and the libertarian is in agreement with such a restriction of individual liberty as just, then a fortiori the libertarian also cannot have any proper objection against distributive justice, which is likewise simply just another restriction of individual liberty conceived as caprice.

LaFollette further claims, “Libertarians seem to desire a totally individualistic system in which one’s interests never have to be weighed against anyone (or everyone) else’s. But that is impossible.” (LaFollette 1979) Libertarians, it is true, are concerned with defending individual freedom, which, however, is not a stand-alone property of an individual, but is of itself a specific historical ‘look’ of sociation, of reified social interplay among human beings sharing a world. This holds true even though there are certainly strains of libertarianism that also misconceive individual freedom as arbitrariness of individual will. The phrase, “totally individualistic”, suggests that the individual claims the ‘liberty’ to do anything he or she wants, without taking consideration of others’ presence in the world. An individual’s interests are always “weighed against” everyone else’s when the individual enters into social interplay, which he must, in order to lead his or her life. It is the sociation, i.e. the interplay with others, that, in the first place, has to be free by virtue of mutual agreement, and only on this basis of mutuality can each individual’s interests be furthered or frustrated. The interplay with others already offers resistance to individual will, especially capricious will, since some kind of mutual agreement has to be reached. Achieving such an agreement fairly, however, is a realization of freedom, not its frustration.

“I have shown that neither property nor liberty (as defined by the libertarian) should be seen as the only social good; singling these out as the only social values is unreasonable. Instead, these should be seen as two values among many, all competing for recognition.” (LaFollette 1979) If the ‘absoluteness’ of freedom (not just individualistic liberty conceived as arbitrariness of will) is relativized among a gamut of other desirable ‘values’ or ‘goods’ of living, such as a secure material standard of living, then it has to be questioned the extent to which these other goods can at all be reconciled with freedom in the sense of a free sociation through estimating interplay. Otherwise, freedom becomes just one ill-defined ‘value’ among others on the shelf of the supermarket of values among which ‘people’ choose what they’d like to have in a ‘free’ society. Above in section 6.8 we have seen, however, that value is a socio-ontological concept of social movement requiring careful development. LaFollette’s conception of what constitutes freedom in a free society is a perversion of freedom, which in truth is demanding and risky, and invariably a power play. If freedom is an essential hallmark of human being as such, and such freedom is and must be realized historically, apart from any other determinations, as the free individual, i.e. the freely sociating individual, then any undermining of the interplay of free individuals as the predominant ontological ‘look’ of sociation in a free society must be considered with due philosophical seriousness, and not by asking for ‘people’s’ opinions and preferences.

By equating the libertarian conception of liberty with the arbitrariness of individual will and its exercise, LaFollette misses the mark in his critique of libertarianism. This is not to say that there are not strains of libertarianism that proceed from the same confusion. Indeed, Nozickian libertarianism has to be saved from itself by pointing the way to a genuine socio-ontological understanding of the mode of being called human freedom. From libertarianism and its critique we turn now to the other side, namely, to left-liberal justifications of distributive social justice, also known under the specious name of ‘solidarity’.

6.11.1The “original position”

John Rawls’ highly influential Theory of Justice represents another contractarian approach to the question concerning justice. It is as if the predilections of the Anglophone mind tend toward considering justice and freedom as issues revolving about what people would likely agree to in a social contract, i.e a question of the collective will of subjects. That sociating movement called living-with-one-another is thus supposed to grounded in subjective, i.e. underlying, will, that hidden god of the onto-theological thinking that reigns in the modern age. The “original position” in Rawls’ theory is the setting analogous to the conception of a state of nature in political philosophy from Hobbes and Locke onward. The original position with its famous “veil of ignorance” is a setting set up in which willed subjects are to choose and agree to principles of justice containing an assortment of rights, these principles being two or three in number. These principles, or starting-points, are merely posited like self-evident or ‘reasonable’ axioms from which to proceed.

The First Principle of Justice: “First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.”122

The Second Principle of Justice: “Social and economic inequalities are to be arranged so that: a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle). b) offices and positions must be open to everyone under conditions of fair equality of opportunity.” (Rawls 1971 TJ:303).

“The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property; and freedom from arbitrary arrest. However, he says: ‘liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle.’ (TJ:54 rev. ed.)”123 A basket of basic liberties of citizens therefore is on offer in the First Principle, and classical libertarian rights of property are not in this basket, for that would be a barrier to the redistribution of wealth and income. This postulated basket of citizens’ rights begs the question regarding the justification for such rights, for it must be asked whether each is in accordance with freedom or not, e.g. whether democracy as a form of government accords with freedom or not and why. Instead, a fully fledged democratic society with the usual rights is assumed as desirable.

The Second Principle formulates a qualified version of egalitarianism that admits deviations from “social and economic” equality if a) a so-called maximin condition for those worst off is satisfied and b) if such inequality ensures equality of opportunity in competing for positions in social hierarchies and running for office in government. Thus a finished political constitution of society familiar in Western liberal democracies is set before those with a sense of justice choosing principles of justice from behind the veil of ignorance. Isn’t the “basic structure of society” assumed in the original position (such as “the political constitution and framework for the legal system; the system of trials for adjudicating disputes”, etc.) already too rich for consideration (whether agreement is reached or not) of justice and fairness? In other words, doesn’t this “basic structure of society” itself have to be developed via a path of questioning thinking to decide whether it is just?

The “veil of ignorance” is a way of abstracting from the particular interests aligned with the social situation of the social actors, in order to construct a hypothetical situation in which rational social actors with a sense of justice could reasonably agree on fundamental principles of justice. The veil indicates of itself that the question of justice is one concerning universal issues of justice, freedom, well-being, the goods of living, etc., rather than the particular self-interests that individuals have and strive for. The veil, however, still allows the self-interested individuals sitting behind it to calculate likelihoods of their being dealt a bad hand in the allotment of social status, interests and abilities, and to decide accordingly, perhaps in favour of minimizing the risk of being placed at the bottom of the social pile. Abstraction is certainly basic to any philosophical thinking-through of phenomena and works by leaving aside certain determinations of the phenomena to concentrate on abstract moments. Such abstraction can also be called “bracketing-off” (Ausklammerung, Husserl). Such abstraction or bracketing-off is of quite a different nature than setting up an hypothetical situation, thought-experiment or ‘model’, which is open to the vagaries of what is to be imagined as being the case and the motivations, etc. ‘if the situation were such-and-such...’. What is the appropriate level of abstraction for considering a fundamental concept of justice? Can this appropriate level of abstraction be achieved by hypothesizing a social situation behind a veil of ignorance? It is easy to see that Rawls’ original position is biased toward distributive justice at the expense of the commutative justice of free and fair interplay among individuals. What justifies this bias? Is the tension between distributive and commutative justice to be resolved by despatching the latter into oblivion, that is, by ‘forgetting’ that there is a crucial issue here? (see section 6.11 below) Above all, the socio-ontological dimension that is to be brought to light by asking what kind of sociating movement underlies the just distribution or commutation of the goods and bads of life is entirely lacking.

In contrast to an approach that poses the socio-ontological question, What is justice as such?, one commentator on Rawls, Fred D'Agostino, even claims that the Theory of Justice is not conceptual, but pragmatic, and from all that is assumed by the two principles of justice, this indeed seems to be the case. “Rawls's analysis was, then, what I will call pragmatic, not conceptual. ... It is, I repeat, a fact about how principles might function that justifies the choice of these principles as principles of social coordination for our society. That they enable ‘each person to secure his ends’ (Rawls), subject to certain circumstances, conditions, and constraints, is their justification, not that they reflect some antecedent understanding of what justice is, metaphysically or conceptually.”124 The principles of justice are to “function” efficiently to secure ends, to bring them forth as finished products on an ongoing basis, a productivist understanding of justice. Hence the bias toward distributive justice at the expense of commutative justice: with the modern welfare state there is an instance of control with the requisite ‘vertical’ political power that is responsible for distributing ‘justly’ material goods, at least, and producing a result, whereas commutative justice concerns the fairness of the games of estimation (esteeming each other, estimating each others goods = exchange-value) played ‘horizontally’ among the players of civil society. The fairness of such interplay concerns the starting-points, the potentials for playing, not the outcomes ‘produced’. According to D'Agostino, “Rawls was trying to determine, in effect, which principles of sociability are fit to play a certain role in the organization of our collective lives”, whereby he leaves the question of who ‘we’ are unposed and unanswered. The original position, he claims, is set up with an eye to achieving “an overlapping consensus of the main substantive ethico-political doctrines current in a community”. What is up for discussion and choice are conventional notions of justice current in a given society, such as certain citizens’ rights, and above all two influential theories of justice: egalitarianism and utilitarianism. Is a conventional theory of justice the best that moral philosophy can do?

This suggests that the original position is not so very original, that is, it is far from asking the originary question concerning what justice is per se, which is the truly philosophical, i.e. socio-ontological, question bequeathed from ancient Greek philosophy. D'Agostino admits this for, according to him, with Rawls’ theory, “we are trying to design a tool for use by certain kinds of agents to accomplish certain sorts of purposes in a certain kind of environment, and our problem is one of practical functional design, not of conceptual analysis or metaphysical speculation about The Good or The Right.” A tool purportedly has to be designed procedurally to achieve ends. But what if justice is not about achieving ends? Perhaps the answer to the originary question, What is justice as such?, is an unpleasant one for those behind the veil of ignorance seeking “an overlapping consensus” on a basket of conventional notions of justice, in the sense that they could not simply choose principles to secure their ends and wellbeing, but rather would have to accept that they not only come to enjoy a social life governed by principles of justice, but also have to live up to demands and duties of freedom and justice. The original position as a setting for a procedure for constructing principles of justice presupposes that ‘people’ can pick and choose and calculate what they would prefer to have as principles to secure their ends connected with living well in society. It is not fortuitous that the proposed principles of justice in the original position are dealt with as if they were distributive principles, even those to do with civil liberties, as if they could be doled out and instituted by mutual consensus on the best arrangement for society, rather than being demands on and duties for free human being as such that guarantee no good as an end to be secured.