Political Philosophy and Racial Injustice
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In mainstream political philosophy the history of European racism, with its
vast implications for the theory and practice of modern liberalism, has
remained largely on the margins. This is nearly as astonishing as the
theoretical marginality of gender until quite recently. I say “nearly,”
because while gender relations have deeply structured every human society,
racial relations, in the sense at issue here, have had major structural
significance “only” for some five centuries. That is to say, they are
contemporaneous with, and deeply implicated with, Western modernity from the
first voyages of “discovery” to present-day neocolonialism. If one asked,
in Rawlsian terms, which morally arbitrary facts about individuals and groups
have had the greatest consequences for their legal and political standing in
the modern world, gender and ascribed race would certainly be near the top of
the list, along with class, though their comparative significance would vary
from context to context. If the context were the global one of European
expansionism since the fifteenth century, then racial classification would
have a strong claim to being the most significant; for a central ingredient
in the process by which more than 4/5 of the globe came to be under European
and/or American rule before the start of World War I was the practice and
theory of white supremacy.
The linkage of Western modernity and the rise of capitalism to the conquest
and exploitation of the nonwestern world is a long-familiar story. Marx had
already noted in the first volume of Capital, “The discovery of gold and
silver in America, the extirpation, enslavement and entombment in mines of
the aboriginal population, the beginning of the conquest and looting of the
East Indies, the turning of Africa into a warren for the commercial hunting
of black-skins, signalized the rosy dawn of the era of capitalist production.
” But Marx and Marxism centered on class relations and generally treated
race relations as derivative therefrom. An alternative account, running
through W.E.B. Du Bois to the critical race theory of the present, has, by
contrast, viewed racial categorization not simply as a dependent variable but
as an irreducible structuring principle of social, cultural, and political
relations in the modern world. On this view, the conquest and settlement of
the Americas, the subjugation and extermination of indigenous peoples, and
the massive expansion of the Atlantic slave trade in the early modern period
were integrally bound up with the social construction of racial differences
and racial hierarchies. During the course of this historical transformation,
imperial ideologies of “Christians versus heathens” gradually gave way to
those of “civilized Europeans versus uncivilized savages,” which were
understood in biologized racial terms already in the eighteenth century. In
the nineteenth century, the “age of empire,” the rapid expansion of
colonialism in Asia, the Pacific, and Africa, fueled a further development of
racial ideologies, particularly in conjunction with the rise of Darwinian
biology and physical anthropology. In short, there was a constant interplay
between colonialism and racism, between the establishment of imperial
domination and the formation of racial ideologies.
In the view of this alternative tradition -- alternative not only to Marxism
but also to liberalism -- these were not ideologies in the sense of mere
epiphenomena of underlying social processes: they were social constructions
that were real social facts with real effects on the ordering of social
relations. This is the view expressed, for instance, by Omi and Winant in
the claim that modernity saw the rise of “racial formations” at both
national and global levels. Systems of racial categorization centered
around visible body types had not only expressive but constitutive
significance in modern society and politics. They not only justified
preexisting practices of racial domination, they entered into and informed
them. Stereotypical images of racial capacity and incapacity not only
reflected institutional reality, they were essential to its very
intelligibility and normativity. Similar appeals to “natural” racial
differences were just as integral to US immigration policy in the nineteenth
and twentieth centuries, to the formation of the American working class and
labor movement, to “Jim Crow” and “separate but equal,” to eugenics and
extermination camps. In short, “race has functioned as a marker of
inclusion and exclusion, equality and inequality, freedom and unfreedom
throughout the modern period, locally and globally. And despite the
successes of the American Civil Rights Movement here and decolonization
struggles abroad, there is widespread agreement in this alternative tradition
that the legacy of institutionalized racism is still with us, that is, that
local and global relations of wealth and power are still structured along
racialized lines. In fact, the persistence of “race” as a significant
ordering principle of social life, even after its political dismantling and
theoretical deconstruction, is seen there to be one of the major problems of
the age -- “the problem of the color-line.”
Since the 1960s, the centrality of race to the modern world in general and to
the American experience in particular has finally permeated mainstream
scholarship in most areas of the social sciences and the humanities. In
mainstream political philosophy, however, the process has only just begun --
despite the evident fact that political discourses, practices, and
institutions have been suffused with racism throughout the modern period and
racial politics persist into the present as the legacy of centuries of
oppression.[5] As a result of this continued marginalization, the
development of conceptual tools for analyzing the racialized dimensions of
modern and contemporary politics has lagged, and the shift from legally
institutionalized patterns of racial domination to domination anchored in
lifeworld cultures and traditions, norms and values, socialization patterns
and identity formations has remained largely untheorized in liberal political
theory.
As a number of scholars have recently documented, however, theoretical margi-
nalization is only part of the story. Most of the classical modern theorists
were aware of and complicit in the emerging system of white supremacy. Thus
Locke famously declared America to be a “vacant land” occupied only by noma-
dic savages still in the state of nature, and hence a land ripe for European
expropriation, as no ownership-conferring labor had yet been mixed with it.
Less famously, he was an original shareholder in the Royal African Company,
which was chartered in 1672 to monopolize the English slave trade -- he in-
creased his investment in 1674 and again in 1675 -- and a few years before (
1669) he had helped author “The Fundamental Constitutions of Carolina,” which
stated that “Every freeman of Carolina shall have absolute power and authority
over his negro slaves, of what opinion or religion whatsoever.”Thus, the same
Locke who declared in the opening line of his First Treatise that “Slavery is
so vile and miserable an estate of man, and so directly opposite to the gene-
rous temper and courage of our nation, that ‘tis hardly to be conceived that
an Englishman, much less a gentleman, should plead for it,”did in fact
support it for the Africans being forcibly shipped to America to serve
English gentlemen.
Our inclination might be to see to see this paradoxical combination as
peculiar to him, or in any case untypical. But that is the problem: it is
all too typical of Western political thought for the next two centuries and
more. Even Kant, who developed what is arguably the philosophically purest
version of European humanism, also developed what is arguably the most
systematic theory of race and racial hierarchy prior to the 19th century.
Kant himself was not only abreast of and indeed in some respects ahead of
contemporary biological accounts of racial difference, he was also
exceptionally well versed in the travel literature of his day. In connection
with his lectures on physical geography and anthropology, which he delivered
annually from 1756 to 1796, he immersed himself in the reports of explorers,
settlers, missionaries, traders, and the like, which constituted a
significant part of the “empirical” basis of comparative cultural studies
in his day. And though he sometimes ridiculed the reliability of such
reports, he nonetheless drew upon them in framing his views of non-European
peoples. We could say, then, that his views mirrored the scope and nature of
European contacts with non-Europeans in the early-modern period. And Kant
being Kant, that mirror had a power and clarity second to none. The popular
racism attendant upon “New World” conquest and enslavement found there its
most highly resolved theoretical reflection prior to the 19th century, one
that already displayed the chief characteristics of 19th-century racial “
science”: racial differences were represented as biologically inherited
determinants of cultural differences, particularly differences in
intellectual and moral capacities. In consequence of what he thus took to be
biologically grounded differences in talent and temperament, Kant conjectured
that non-European peoples were incapable of autochthonously realizing their
humanity, and in particular of attaining that perfectly just civil
constitution which is the highest task that nature sets to mankind. Hence
Europe would “probably legislate eventually for all other continents.”
This was the plan of nature, and thus God’s plan, and thus humanity’s best
hope. So here we have it already before the close of the eighteenth century:
a theoretical rationale for global white supremacy, rooted in biology and
featuring hereditary differences in ability and character, and replete with
the civilizing mission of the white race favored by nature to be the
pacemaker of cultural progress and to give the law to the rest of the
world-- a rationale that had only to be further developed and adapted to
meet the needs of the “floodtide of imperialism” in the nineteenth century.
There are, of course, important variations from context to context and author
to author. But there is an also general pattern: non-European peoples are
characterized as savage or uncivilized, as not possessed of fully developed
rational capacities and incapable of fully rational agency, and thus declared
to be in need of tutelage, not only for the good of those who command them
but also for their own good, for the full development of their capacities. By
the latter part of the 18th century, but especially in the 19th century, this
scheme was filled in with developmental philosophies of history placing
European civilization at the apex of social and cultural progress, and with
allegedly scientific theories of racial difference and racial hierarchy. More
recently, however, especially since World-War II, the widespread dismantling of
colonial empires and of de jure discrimination in regard to citizenship rights
has been accompanied by a change in the treatment of race in liberal political
theory. There is no longer any attempt theoretically to justify or accommodate
racial subordination within a putatively universalistic theory. Rather, the
treatment of this persistent feature of the messy political reality we inhabit
is consigned to the province of “nonideal theory.”
Part of the explanation behind this consignment is the tectonic shift in
methodology that Richard Bernstein analyzed in his early study of The
Restructuring of Social and Political Theory. There he noted the ambivalent
attitude toward normative theory of the positivist approach to social and
political inquiry that had gained ascendancy in the twentieth century.“On the
one hand, there is an insistence on the categorial distinction between empiri-
cal and normative theory, but on the other hand, there is a widespread skepti-
cism about the very possibility of normative theory.” That skepticism was
based on a strict dichotomy between facts and values, the assignment of empi-
rical science to the former domain and of normative theory to the latter, and
the view that there could be no rational determination of anything so subjec-
tive as “values.” Bernstein himself went on in that work to criticize this
architectonic and to propose an approach to social and political theory that
rejected the empirical/normative dichotomy in favor of a mode of inquiry that
was at once empirical, interpretive, and critical -- that is, a mode of criti-
cal social theory. But just before he offered his diagnosis and proposal in
the mid 1970s, a new venture in normative political theory had taken shape, one
which by and large accepted the fact/value split, rejected the skepticism
concerning rational discourse about values, and proposed another, more
cooperative division of labor between empirical science and normative theory:
the theory of justice of John Rawls, which has remained the dominant paradigm
of normative political theorizing to this day.
In this paper, I want to (I) examine the division of labor between ideal and
nonideal theory as it appears in Rawls’s thought, (II) identify some of the
obstacles this paradigm presents to developing an adequate account of racial
injustice, and (III) suggest that to overcome them we have to move in the
direction of a critical theory of race.
I
As Susan Moller Okin and others have argued, Rawls effectively
screened out gender and the gendered structure of the family from the purview
of A Theory of Justice by designating the participants in the original
position as “heads” or “representatives” of families. Behind the veil
of ignorance, not only is one’s sex unknown to one, but participants seem to
be unaware of the sex-gender systems that have deeply structured every
society on record. Accordingly, the massively differential effect of the “
morally arbitrary” fact of sexual difference does not become a central
theoretical issue for justice as fairness. And although Rawls mentioned
gender as a basic problem of our society in the introduction to Political
Liberalism some 20 years later (PL, xxviii), it still remained untheorized
therein. After a second round of criticism by Okin and other feminist
theorists, Rawls briefly addressed the matter in his 1997 University of
Chicago Law Review piece on “The Idea of Public Reason Revisited.” (CP,
575-615) There he endorses a principle of equal justice for women which
requires that “wives have all the same basic rights, liberties, and
opportunities as their husbands.” (CP, 597) He notes that the gendered
division of labor in the family has been implicated historically in the
denial of such equality, and holds that such a division might persist in a
just society only if and when it were “fully voluntary” and arrangements
were made to ensure that it did not undermine the equal liberties and
opportunities of women. (CP, 600) It seems to follow -- and this is my main
point -- that such arrangements would have to be given full consideration in
the original position, and thus that the parties would have to be given
access to the knowledge of “social theory and human psychology” (CP, 601)
needed to deal rationally with them. In short, sex-gender would have to be
theorized at the same level and in the same detail as other major axes of
justice/injustice.
A similar question might be raised concerning cultural and institutional
patterns of racial domination. Charles Mills has remarked on the surprising
insignificance of racial discrimination as an explicit theme (rather than a
tacit subtext) of A Theory of Justice, which appeared in a highly charged
political atmosphere a few short years after African-Americans had finally
won their centuries-long struggle for equal civil and political rights.
One might add to this the absence of any sustained discussion of colonialism
in a world convulsed with the dying gasps of European-American (formal)
global rule. These, it seems, are features of the modern world about which
parties in the original position are ignorant and are therefore unconcerned
to address explicitly in laying out the basic structures of justice. But
though the American Civil Rights Movement and the global decolonization
struggles of the period did eliminate most forms of de jure inequality, many
forms of de facto inequality remained in place --deeply entrenched in the
beliefs and values, symbols and images, practices and institutions,
structures and functionings of national and global society. Hence, while
certain legalized forms of subordination like slavery and serfdom may now be,
as Rawls says in Political Liberalism, “off the agenda” (PL,151, n.16)),
the same cannot be said for racial relations generally, as he acknowledges in
the introduction to that same work and as the persistent debates about
affirmative action and other proposals for addressing the enduring legacy of
legalized racism attest. Why, then, if “race” is admittedly still among “
our most basic problems” (PL, xxviii), is it not theorized therein?
An important part of the answer, I want to suggest, has to do with the
nature of “ideal theory.” Kantian in conception, ideal theory starts with
“rationally autonomous agents” and allows them only so much information as
is needed to achieve agreement on basic principles. This point is
reached, according to Rawls, when the parties in the original position,
represented now as symmetrically situated trustees of free and equal,
rational and reasonable citizens, know all and only those “general” -- not
particular or personal -- “facts” about society -- that is, laws, theories,
and tendencies pertaining to politics, economics, psychology, and social
organization -- required to design a just and feasible basic structure. Or,
as Rawls also puts it in his most recent book, ideal theory seeks to
construct a “realistic utopia.” (LP, 6) In this respect, it follows
Rousseau in taking (a) “men as they are” and (b) “laws as they might be.”
(LP, 7, 13)
(a) Rawls understands the former phrase to mean “persons’ moral and
psychological natures and how that nature works within a framework of
political and social institutions.” (LP, 7) To take men as they are in this
sense means to “rely on the actual laws of nature and achieve the kind of
stability these laws allow.” (LP, 12) Hence parties in the original position
must have access to the relevant general knowledge about such laws. This has
consistently been Rawls’s position. In TJ, while the veil of ignorance
rules out knowledge of particular personal or social circumstances, the
parties do know “the general facts about human society” pertaining to
politics, economics, psychology, and social organization. Indeed, “there are
no limitations on general information, that is, on general laws and theories,
since conceptions of justice must be adapted to the characteristics of the
systems of social cooperation which they are to regulate.” (TJ, 137-8) Some
thirty years later, in The Law of Peoples, the same idea is expressed in
similar terms: ideal theory is “realistic” when it depicts a social world
that is “possible,” that is, one that is “achievable” in light of what we
know about “the laws and tendencies of society.” (LP, 11) But there is
added emphasis in the later work on “political culture” as a condition of
feasibility. Thus in The Law of Peoples, civil society, the religious and
moral traditions that support the basic structure of political and social
institutions, the industriousness and cooperative talents of members, and
their political virtues are all mentioned as “crucial” to the possibility
of a society being well-ordered. (LP, 108) Accordingly, relevant “general”
knowledge -- general facts, laws, theories, tendencies -- about political
culture would have to be added to that concerning economic, politics, social
organization, and psychology, if the parties are to design a realistic basic
structure, one that is feasible as well as just. At the same time, however,
this way of delimiting what is known behind the veil of ignorance entails
that much of the “particular” knowledge required to understand and deal
with racial injustice will not be available to parties in the original
position -- knowledge, for instance, about “the particular circumstances of
their own society,” or “to which generation they belong” (TJ, 137), or “
the relative good or ill fortune of their generation.” (PL, 273)
(b) Rawls understands Rousseau’s phrase “laws as they might be” to mean “
laws as they should or ought to be,” (LP, 7) and this too seems to entail
that constructions of race have no place in ideal theory -- for “race”
should not be a structuring principle of political and social relations.
It is, in short, morally irrelevant. But this then threatens to render
normative theory both unrealistic and unfair. To quote Charles Mills: “
Failure to pay theoretical attention to this history [of racial
subordination] will then just reproduce past domination, since the
repercussions of white supremacy for the functioning of the state, the
dominant interpretations of the Constitution, the racial distribution of
wealth and opportunities, as well as white moral psychology...are not
examined.”[19] It is at this point that Rawls’s notion of “nonideal theory
” comes into play. Taking the principles established by ideal theory as a
guide, it approaches the “noncompliance” and “unfavorable conditions” of
the real world in a spirit of reform: it asks how political ideals “might be
achieved, or worked toward, usually in gradual steps. It looks for policies
and courses of action that are morally permissible and politically possible
as well as likely to be effective.” (LP, 89) Thus, though “ the specific
conditions of our world at any time... do not determine the ideal conception,
“ they “do affect the specific answers to questions of nonideal theory.”
(LP, 90) Does this division of labor work?
We can understand this as a question about the relative strengths and
weaknesses of alternative theoretical strategies, for political theory has
been practiced in a great variety of ways, each with its peculiar advantages
and disadvantages. One advantage of Rawls’s neoKantian strategy is
precisely the “purity” of the conception of social justice it constructs:
social arrangements are based on equal respect for free and equal moral
persons. Morally irrelevant particularities are systematically excluded or,
when unavoidable, compensated for, inasmuch as even at this high level of
abstraction there are certain “impurities” that cannot be simply excluded
from ideal theory if the envisioned “utopia” is to be at all “realistic.”
Rawls already built some of these into A Theory of Justice --for instance,
inequalities of birth and natural endowment -- and in Political Liberalism he
in effect added the persistence of deep cultural and ideological
differences to the list: ideal theory now has to accommodate, within its
theory construction, the “fact of reasonable disagreement” about the
meaning and value of human life. And Rawls seems now to concede that
feminist arguments for adding sex and gender to the list are irresistible.
At the very least, the “general fact” of the biological division of labor
in the reproduction of the species has to be acknowledged by the parties in
the original position and so accommodated in their design of a basic
structure as to ensure women’s substantive freedom and equality. Our
question now is whether the same may be said of race? For Rawls, I think, the
answer has to be “no.” If “race,” in the sense at issue here, is at
bottom a social, cultural, and political formation developed for purposes of
subordinating certain groups to others, then it should simply be eliminated
as a structuring element in a “well-ordered society.”In the ideal
society, there would be a total absence of race in this sense . So ideal
theory cannot be where it is theorized.
In itself, this need not be a problem. Political theorizing has always been
carried on at various levels of abstraction. There is, in my view, nothing
to be said against even the highest -- “Kantian” -- levels per se,
providing that they are not taken to be exclusively valid for, or
inclusively adequate to, their objects. Given that Rawls’s political theory
is configured as a multilevel undertaking, with the intent of addressing
relevant problems at one level or another, the question for us to consider
is how his overall strategy, particularly the ideal/nonideal dichotomy,
measures up against alternative strategies as a way of theorizing race.
II
To begin with, general “facts” about the social world are, as
anyone who has followed the discussions in postpositivist philosophy of
social science will be aware, hardly the uncontroversial matter that Rawls
represents them to be. Facts are stated in languages, and so long as there
is no single general theory on which a consensus has formed within and among
the relevant communities of investigators in any of the major domains of
social life, the languages, and hence the facts -- not to mention the “
general laws” -- of the social “sciences” are up for debate. Unless Rawls
wants to take a firm position on, say, the century-old understanding/
explanation debates -- and build that position into his “
freestanding” political liberalism -- he will have to leave open the
possibility that social and political inquiry has an ineliminable
interpretive dimension and thus that what the general facts about social life
are cannot be settled from the standpoint of a neutral observer or a
reflective equilibrator. If “realistic” political theory cannot be
pursued without incorporating into it knowledge of the general
characteristics of the social systems to which it is meant to apply, then
political theory will have to get involved in just the sorts of
interpretive-historical and social-theoretical disagreements which, in its
self-understanding as normative theory, it hopes to avoid. And interpretive
approaches to the human world typically place more and different weight on
historical modes of inquiry than do positivist or empiricist approaches.
Hermeneutic understanding is inherently historical: it aims to comprehend
social phenomena as historical phenomena, often in narrative terms. But then
Rawls strict separation of “general” from “particular” knowledge of
society become problematic, if, as hermeneutically inclined social theorists
maintain, general information about society always comes, even if often only
tacitly, with an historical index.
If political theorists do not dispose of interpretation-free “facts” in the
way that Rawls intends, neither do they have conflict-free “values” at
their disposal. Rawls himself explicitly characterizes the political values
that his conception of justice seeks to articulate as belonging to the public
political culture of a particular historical society and not to some ideal
realm beyond the world. But then it follows that, as such, they do not come
with fixed, clear, uncontested meanings; rather, they have to be
interpretively worked up from the variable, particular, often conflictual
political contexts in which they figure. As a result, the basic terms of his
political conception cannot but reflect and project the particular forms of
life and situations of conflict from which they are prepared; and they must
be understood and assessed in relation to them. Thus his guiding conceptions
of “persons” with two “moral powers” as both “free and equal” and “
rational and reasonable,” of “primary goods” as “specifying citizens needs
” in a way that provides a “practicable basis of interpersonal comparison,
” and of the “stability” of a “well-ordered society” are laden with
particular -- and contestable --interpretations and evaluations. It makes no
sense to suppose that we could insulate their construction from the conflicts
of interpretation and evaluation endemic to our public political culture, our
constitutional tradition, our legal and political practices and institutions.
Working them up theoretically via reflective equilibrium or rational
reconstruction cannot remove the traces of their conflictual origins .
In A Theory of Justice, Rawls was clear that the method of reflective
equilibrium could not simply articulate an already existing consensus on
basic political values, for the reason, among others, that such values had
always been and continued to be debated in the public political culture. In
view of the admittedly deep divisions on many of the matters to which he
addressed himself -- for example, the meanings and relative weights of
liberty and equality -- he did not understand his method of reflective
equilibrium to be the hermeneutically conservative operation interpreters and
critics sometimes mistook it to be. He remarked, for instance, that the kind
of wide reflective equilibrium proper to moral philosophy might bring about a
“radical shift” in our sense of justice (TJ, 49). It involved, as he put
it a few years later, asking “what principles people would acknowledge and
accept the consequences of when they had the opportunity to consider other
plausible conceptions and to assess their supporting grounds... [It] seeks
the conception, or plurality of conceptions, that would survive the rational
consideration of all feasible conceptions and reasonable arguments for them.
” (“The Independence of Moral Theory”, CP, 289) But this might well put
the theorist in the position of defending a comprehensive moral theory within
the conflict of interpretations and reconstructions. And that is something
which Rawls’s recent stress on “overlapping consensus” now explicitly
disallows.
In Political Liberalism and The Law of peoples, the idea of the “reasonable
” undergoes considerable dilution. The overriding concern of both these
works is with the “feasibility” of liberal ideals and the “stability” of
liberal institutions in the face of cultural and ideological pluralism. The
irreducible plurality of basic views on the meaning and value of human life
makes it necessary, Rawls now maintains, to construct a purely “political”
conception of justice that “stands free” of “comprehensive doctrines” of
any sort, including general philosophical views. This “strategy of avoidance
” relocates the “reasonable” at some remove from the Kantian notion of
reason, with its close connection to the idea of a critique that submits all
claims to authority to the free examination of reason. The reasonable
pluralism that we might expect to result from “the exercise of human reason
under free institutions” (PL, 55-58) is, in Rawls’s construction of a “
political” conception of justice, replaced in effect by the de facto
pluralism of comprehensive doctrines that satisfy the much weaker
requirements set by his revised notion of toleration. As a result,
enlightenment and critique can play only a severely restricted role in
normative theory of this sort, and that too makes it an unsuitable vehicle
for theorizing racial injustice. In my concluding remarks I can do no more
than gesture toward an alternative -- and in my view more promising --
theoretical strategy.
III
In interpreting the languages of political thought, normative
theorists too often take abstract formulations at their word, as if what were
left out of the saying were left out of the meaning; they neglect to attend
to how key terms actually function in the multiplicity of contexts in which
authors and their audiences put them to use, or to what in practice are
regarded as conditions of satisfaction and acceptability for claims employing
them. They tend also to disregard that general norms are always understood
and justified with an eye to some range of standard situations and typical
cases assumed to be appropriate, and that if that range shifts, then so too
do the understandings and justifications of those norms, the conceptual
interconnections and warranting reasons considered relevant to them. On the
other hand, recognizing that ideals and principles of justice, however
abstract their form, always come with contentful preunderstandings that
derive from their locations not only in systems of thought but also in forms
of life, does not in itself commit us to sheer localism. In the case in
point of liberalism’s complicity with racial slavery, for instance, many of
the ideas implicated in the justifications of slavery were also given more
inclusive interpretations in the same cultural contexts as the dominant
exclusionary versions highlighted in section I above. That is to say, those
contexts also provided resources for arguments against slavery on religious
or philosophical grounds, including arguments to the effect that the basic
rights possessed by all human beings as such forbade it. One could say,
then, that there were competing meanings -- networks of inferential
connections, ranges of standard situations and typical cases -- which partly
overlapped and partly diverged, but which were sufficiently interlinked to
make disagreements real disagreements and not just incommensurable
mutterings. And one might then understand the work of critics -- and
critical theorists -- as an ongoing effort to reweave those connections and
redefine those ranges so as to promote more genuinely inclusive versions. In
doing so, they adopt the internal perspective of reflective participants and
invoke the context-transcending validity claims of putatively universal
ideals to argue that they have been betrayed, that existing formulations,
though expressed in formally universal terms, are actually exclusionary.[27]
On this view, the search for a genuinely inclusive theory of
justice is a never ending, constantly renewed effort to rethink supposedly
universal basic norms and reshape their practical and institutional
embodiments to include what, in their limited historical forms, they unjustly
exclude. What generally drives this effort are struggles for recognition by
those whom the norms in their established versions fail to recognize.[28] And
the intellectual form it takes is the ongoing contestation of essentially
contestable articulations of the universal demands of justice. Judith Butler
puts the point this way: “the provisional and parochial versions of
universality” encoded in law at any given time never exhaust “the
possibilities of what might be meant by the universal.”[29] Contestation by
subjects excluded under existing definitions and conventions are crucial to “
the continuing elaboration of the universal itself,” for “they seize the
language of [the universal] and set into motion a ‘performative
contradiction,’ claiming to be covered by [it] and thereby exposing the
contradictory character” of conventional formulations.[30] Butler here
captures the important idea that the possibility of challenging putatively
universal representations is inherent in those representations themselves, or
more precisely, in their context-transcending claims, and that historically
that possibility has been exploited to greatest effect by groups who, though
not entitled under existing formulations of the universal, nevertheless
appeal to it in formulating more inclusive conceptions of justice.
Viewed in this light, as a part --albeit a reflective part -- of
historical processes of emancipation, normative theory is clearly not “
freestanding” in any fundamental sense. And, as the shock-effects of
Foucault’s genealogies have made clear, the familiar enlightenment
metanarratives of universal principles discovered at the birth of modernity
fail to acknowledge the impurity of the demands that have historically been
made in the name of pure reason. Accordingly, there is a need for critical “
histories of the present,” the aim of which is to alter our
self-understandings by examining the actual genealogies of accepted ideas and
principles of practical reason.[31] This distinguishes critical approaches
to moral and political theory from approaches like Rawls’s that seek to
construct fundamental norms of justice from the “settled convictions” of
our “public political culture” by way of “reflective equilibrium.”
Critical histories make evident that the political values from which
political liberalism seeks to construct a political conception of justice
have always been and still are deeply contested, often fiercely, and usually
in connection with matters of power, desire, and interest. And they make us
aware that the quite varied, often conflicting ideas, principles, values, and
norms that have been taken to express the demands of justice cannot
adequately be comprehended or assessed without understanding that and how
elements of the contexts and situations in which they were propounded entered
into them.[32]
It is not only this “context of origins” that contemporary
normative theory leaves largely unexamined, but the “context of applications
” as well. The distinction that Rawls and others draw between ideal and
nonideal theory insulates political theorizing, at least initially, from the
messiness of political reality. Subsequent forays into nonideal theory are
all too often of limited value because of their loose, post hoc connection
to empirical work. Specifically, discussions of race following this strategy
usually end up as discussions of affirmative action in the broadest sense:
since equal citizenship rights are now largely in place, the “unfavorable
conditions” at issue are the substantive inequalities that are the enduring
legacy of centuries of legalized oppression and discrimination.[33] Of
course, one then has to judge any proposed remedial measures, policies, and
programs from a pragmatic as well as a moral point of view, for they are put
forward as practical means to the desired end of eliminating or reducing
those inequities. Hence the case for any concrete compensatory measures has
to be made not just “in principle” but “all things considered,” that is,
it has to take into account empirically likely consequences and side-effects,
costs and benefits, comparative advantages and disadvantages vis-à-vis
possible alternatives, political viability, long-term efficacy, and so on.
Thus nonideal theorizing of this sort turns normative political theory back
in the direction of the empirical social reality it began by abstracting and
idealizing away from. But -- and this is my main point here -- there are no
theoretical means at hand for bridging the gap between a color-blind ideal
theory and a color-coded political reality, for the approach of ideal theory
provides no theoretical mediation between the ideal and the real -- or
rather, what mediation it does provide is usually only tacit and always
drastically restricted.
On this last score, what Habermas argues in Between Facts and
Norms to be true of legal theory holds ceteris paribus of normative
political theory as well -- namely, that it always relies upon implicit
background assumptions drawn from some preunderstanding of contemporary
society’s structures, dynamics, potentials, and dangers.[34] These implicit
“images” or “models” of society tacitly enter into normative-theoretical
constructions and often play a covert role in what appear to be purely
normative disagreements. Deep differences in normative theory -- for
instance, those separating classical from social-welfare liberals, or those
dividing both from their socialist, radical feminist, or postcolonial critics
-- often turn on disagreements about the “facts” being assumed, implicitly
as well as explicitly, in regard to markets, classes, gender roles, global
relations, and so forth. And as we know from the history of theory,
significant shifts in thinking often come about as a result of challenges
precisely to what have previously been taken for granted as the natural,
unalterable facts of social life -- class-structured distributions of the
social product, gendered divisions of labor, race-based hierarchies of social
privilege, ethnocultural definitions of political membership, and the like.
These considerations strongly suggest that such understandings, images, or
models of society, which are always at work, though usually only tacitly, in
normative theorizing, have to become an explicit theme if political theorists
hope to avoid exalting intuitive preunderstandings of their social contexts
into universal ideals. But political theory would then have somehow to
combine intuitive knowledge from the perspective of the “insider” with
counterintuitive knowledge from the perspective of the “outsider,” in the
senses both of the observer and the excluded.[35] It would have to join the
constructive and reconstructive aims of normative theory to the interpretive,
analytical, and explanatory aims of history and other empirically based human
studies, and to the practical aims of social and cultural criticism. Given
the existing institutionalization of research and scholarship, it would have
to become interdisciplinary to the core.[36] And this means that normative
theory would have to become an interdependent -- not freestanding -- moment
of a larger critical enterprise; that is, it would have to be pursued in a
self-consciously interdisciplinary manner and remain theoretically responsive
not only to the political struggles of the age but also to contemporary
developments in historical, social, and cultural studies. At least it would
have to do so if it hoped to have anything of interest to say about racial
injustice.
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