From Institutions to Persons?

Introduction

During the 2005 Live 8 Concert, Bono, the lead vocalist of the rock band U2, addressed audaciously the mammoth crowd in London’s Hyde Park: ‘We don’t want charity, what we want is justice’ (Ferguson, 2005). Bono is not talking nonsense here! Today, propelled by the unprecedented escalation of poverty and socioeconomic inequality, the need to respond to injustice both philosophically and politically screams like the brassy sound of the trumpet. The challenge is not only to think but to think harder concerning what social justice means and what it requires. So, when we talk about social justice, what exactly are we talking about? How do we define its contours?

Unlike the ancients that take human actions such as decisions, judgements, attitudes, and dispositions of persons as the subject of justice, John Rawls pays more attention to the justness or unjustness of laws, institutions, or social systems (Rawls, 1999a, pp. 3–4). The primary subject of justice, he says, is the basic structure of the society comprised of the entire set of major political, social, and economic institutions. In contrast to Aristotle, Rawls does not consider justice as a personal virtue, but the first virtue of social institutions. Following the footsteps of the moderns that divorced the question of ‘how ought we live together’ from ‘how ought I to live’, Rawls applies exclusively his normative principles of justice, namely the equal liberty principle, the difference principle, and the fair equality of opportunity principle to institutional evaluation but not to personal conduct.

However, reading closely Rawls’s work reveals that there are two potential ways through which his theory of justice can be extended in a more robust way to include personal conduct. These include (a) the moral dualism argument and (b) the educative effect of institutions argument. The moral dualism argument refers to Rawls’s proposal of two normative principles that apply to individual actions and to institutions, respectively. As such, a distinction can be made between normative judgement on institutions on the one hand and normative judgement on individual interaction on the other hand. Meanwhile, the educative effect of institutions argument refers to the capacity of institutions—through their rules and the corresponding policies created—to impact on individual conduct. As such, while institutions may not have a direct influence on personal conduct, they can have an indirect impact on one’s daily actions.

This article examines the potential Rawlsian response to the critique on Rawls’s basic thesis that the primary subject of justice consists of social institutions. Two claims will be made accordingly. First, despite the attractiveness of the moral dualism argument, it suffers from the possibility of conflict between the principles that apply to institutions and the principles that govern personal conduct. Second, the educative effect of institutions argument is problematic primarily because actual behaviour of individuals does not necessarily follow what just institutions prescribe. In the end, the article argues that extending Rawls’s subject of justice from the basic institutions of society to personal conduct is difficult to sustain consistently.

The article will proceed in four parts. First, the background of Rawls’s institutionalism is laid down by discussing the notion of the basic structure as well as the three arguments why he takes it as the primary subject of justice. Second, the moral dualism argument will be discussed. This will be followed by a discussion on the educative effect of institutions argument in the third section. The last part presents a brief conclusion.

Why the Basic Structure

Unlike the ancients such as Plato and Aristotle that take individual decisions, judgement, attitudes and personal dispositions as the subject of justice, Rawls pays more attention to the justness or unjustness of laws, institutions, and social systems. The primary subject of justice is the basic structure of society defined as the way in which major social institutions make up one system and how they distribute the fundamental rights and duties or advantages and disadvantages of social cooperation (Rawls, 1999a, p. 4). The basic structure includes the political constitution, the organization of the judiciary, the system of property in the means of production, market relations, and family organization.

According to Rawls, the basic structure or better yet social institutions are characterized by a publicly understood system of rules or procedures that define offices and positions, specify permissible and non-permissible actions in relation to these offices as well as the sanctions when violations of the rules occur. In other words, the rules outline the rights and duties that individuals must observe and the powers and immunities they possess in relation to the offices and positions they occupy (Rawls, 1999a, p. 47). These regulative rules, as John Searle (1969, pp. 34–35) puts it, are expressed in the formula ‘Do X’ or ‘If Y, do X.’ As such, the basic structure can be characterized as a regulatory structure in that it regulates the behaviours of individuals within the social institutions, guiding them what they can and cannot do (cf. Giddens, 1993, p. 19). Being composed of rules that serve as a guide, a maxim or a generalization from experience (Rawls, 1955, p. 23), the basic structure structures the ways in which individuals in society relate or interact with one another. For example, the rules of private property define how individuals can legally acquire tangible assets like land, houses, and other material resources. Likewise, the rules of the market measure the market value of these tangible properties as well as specify the behaviours of the consumers and the capitalists.

Apart from being a regulative structure, the basic structure can be also conceived as a general social background of social practices. Some of the rules governing social institutions are constitutive in that they help define the social practice in question (cf. Giddens, 1993, p. 19; Searle, 1995, pp. 45–46.). Rawls (1999b, p. 37; see also Rawls, 1955) makes a distinction between the rules of a practice and the action that falls under it. In his view, the rules of a practice specify a kind of action or move, that is, they provide the conditions for the possibility of actions, the background for any action to be considered as meaningful. Applied to the relationship between individual conduct and social institutions defined by ground rules, this implies that understanding the structure of the ground rules makes possible the assessment of individual actions within the institutions.

Why does Rawls take the basic structure as the primary subject of justice (see also Abizade, 2007, pp. 318–358)? The first reason is that its effects upon individuals’ interests, options and ability to pursue their conceptions of the good life are ‘pervasive and present from the beginning of life’ (Rawls, 2005, pp. 269–271). The basic structure shapes to a large extent the life prospects of individuals, for instance, the way talents and abilities of individuals are developed. Although genetic inheritance matters, the natural capacities of individuals are not fixed gifts from nature. Their development depends upon the available social conditions such as the attitudes of encouragement and support from one’s family and the institutions for their training and use (Rawls, 2005, p. 270).

The second reason is that institutions of the basic structure secure background justice (Rawls, 2005, pp. 268–269). According to Rawls, there is a need for procedural rules that regulate the social system in order to maintain just background conditions overtime. The Lockean and Nozickian view concerned with establishing an initial just distribution but leaving further distributive outcomes to the market process does not guarantee fairness (see Nozick, 2001). Although there was an initial just distribution of resources in the past, it could happen that as a result of further transactions a few individuals in the present have monopolized the ownership of society’s wealth and property, leaving the majority wrestling over too small a wealth. To insure fairness of the system of social cooperation, Rawls (1999a, p. 77) thinks that the basic structure must be subjected to periodic regulation and correction.

The third argument why Rawls takes the basic structure as the primary subject of justice is called the coercion argument (cf. Nagel, 2005, pp. 114–147). It has to be stressed that it is not coercion per se but the reason for coercion why Rawls take social institutions as the primary subject of justice (Freeman, 2007, p. 102). Through institutional coercion, a stable social cooperation is effectively maintained. Alluding to the Hobbesian description of individuals as primarily selfish, Rawls is sceptical that there is mutual trust among them in fulfilling their duties as citizens. In the arrangement and financing of public goods, some individuals will end up as free riders and will abscond their share of the burden. This assurance problem can only be addressed through state coercion in which rules are enforced upon all the citizens. Applied to the issue of social justice, this means that (distributive) justice can be better enforced by social institutions—to which individuals are members—rather than leaving it to individual initiative.

Indeed, for Rawls, the basic structure is the primary subject of justice because it produces pervasive impact on people’s lives, it secures background justice, and it is necessary for effective and stable social cooperation. However, because of his emphasis on the basic structure of society, Rawls appears to have underestimated the role of personal conduct in the pursuit and preservation of justice. It would seem that the duty of justice is only applicable to social institutions and not to the choices of individuals. This apparent exclusion of personal conduct from Rawls’s primary subject of justice has been the subject of dispute between Rawls and his critics, particularly Cohen (2008, 1997) and Liam Murphy (1999). They both call into question Rawls’s move and argue that the preservation and pursuit of justice must not be limited to establishing and supporting the right or just institutions.

Notwithstanding the criticisms about the need to include personal conduct in the primary subject of justice, the question is: Is it really the case that individual actions have no place in Rawls’s theory of justice? Does he really exclude personal conduct when he points to the basic structure of society as the subject of justice? Although this appears to be the initial case, reading closely Rawls’s work would suggest otherwise. In fact, there are two possible ways through which his theory can be extended, in some robust way, to include personal conduct, namely (a) the moral dualism argument and (b) the educative effect of institutions argument. What I intend to do at this juncture is to examine these arguments and explore the extent through which Rawls can consistently hold them.

Moral Dualism Argument

As has been shown previously, Rawls mainly focuses on social institutions as the component of the basic structure. The principles of justice, namely the equal liberty principle, the difference principle and the fair equality of opportunity principle only apply to social institutions and not to individuals’ actions. The ‘justness’ of the society depends on how far the social institutions are arranged in accordance with the principles of justice. For example, if distributive schemes such as the Universal Basic Income, employment subsidies, or equal educational opportunities are implemented in society A, then, such a society is more just compared to society B in which these schemes are absent.

However, it might be argued that Rawls’s restriction of the primary subject of justice to the basic structure of society needs to be understood in the context of his aim to contrast the latter with theories that concern principles for assessing individual actions within a society. In his A Theory of Justice, Rawls (1999a, p. 94, pp. 293–343) explicitly proposes a different set of principles applicable to extra-institutional personal conduct, namely the principles of natural duty, which includes the positive duty to uphold justice, mutual aid and mutual respect; the negative duty not to injure and not to harm the innocent and obligations such as the obligation of fairness and fidelity. According to Rawls, these demanding ‘moral principles’ constrain the way individuals interact with one another, as in the case of being honest to someone. Given the distinction between justice principles that apply to institutions and normative principles that apply to individual action within the society, undeniably, Rawls proposes a moral dualism between institutions and personal conduct. Consequently, a distinction between normative judgement on institutional structures and normative judgement on individual interaction is likewise proposed. He makes a distinction between the subject of justice and the subject of ethics. While justice is concerned with institutional design, ethics is concerned with individual action (see also Pogge, 2007). Now, given Rawls’s moral dualism argument, I want to argue that this position is not that straightforward.

Granted that individual actions may be constrained both by the rules of institutions (to which the individual is a member) and the principles (or rules) outside the institution, say the moral principles that the individual holds. Granted also that individuals have the freedom to choose and pursue their conceptions of the good life as they see them, so long as the choices they make are within the bounds set by the principles of justice (Daniels, 2003, p. 264). Notwithstanding the likelihood of their compatibility, it is hard to deny that the distinction between the two sets of principles and rules opens the possibility for conflict. The moral reasons for an action may run contrary to what the ground rules or social institutions prescribe (Pogge, 1989, p. 104). An action may be considered just by institutional rules but morally unacceptable at the interactional level, or vice versa. Take the case of a legislator who favours the entry of mining corporations involved in open-pit mining that has the potential to destroy the natural environment of the indigenous peoples’ community. From the institutional perspective, the legislator does not violate any law given the law permitting responsible mining in the country. However, from an individual (or interactional) perspective, the legislator may be judged as acting immorally because such open-pit mining violates the moral principle of social justice and the common good, particularly when it destroys the ancestral domain of the indigenous peoples. Or imagine the case of a doting father who, working for the government, has been convicted of graft and corruption by a local court. What if the primary reason for his action to steal money from the government is to provide for the material needs of his family which he believes is his primary duty? The question now, therefore, is: In the context of Rawls’s view on moral dualism, how are the hard cases as the potential conflict between what institutional rules prescribe and what individual morality requires to be adjudicated? Is there a principle beyond these two principles through which the tension is resolved? Or can these two principles be integrated?

Judging from Rawls’s recent works as Political Liberalism (2005) and Justice as Fairness (2001), he seemingly offers a solution to this potential problem by distinguishing two separate viewpoints following the public–private sphere divide—that of being citizens and that of being persons, that is, the political and the personal (Rawls, 2005, pp. 30–31; cf. Forst, 2002). Political life is mainly understood as the individuals’ public identity as citizens of a democratic society where, as a matter of basic law (or constitution), identity refers to politically free and equal citizens. Meanwhile, individuals’ social life refers to their moral or non-public identity comprised of their peculiarities and circumstances, for instance, the religious, philosophical, and moral doctrines they hold. The latter are excluded from the political life of citizens because Rawls thinks that they are irrelevant to their public identity (O’Neill, 1997, p. 37).

Given this distinction, if the individual action is made in accordance with his status as a citizen, then, he has to be judged on the basis of the rules, laws, or policies of social institutions. Applied to the issue of justice, this would mean an indirect application of justice, say when the agent obeys just laws or when he cooperates in imposing a just institutional order under which the poor are given secure access to basic subsistence. However, if the individual action is done in the context of his ontological status as a person, then, he should be properly judged according to the rules applicable to individual interaction. Indeed, for Rawls, it seems that the individual, both in his political and personal life, is able to perform his duties of justice.

To some extent, one could say that this position makes sense. Individuals are able to hold their roles together, whether as persons or citizens, without any conflict. If the agent’s personal pursuit of justice goes hand in hand (or is in line) with what the (just) institutions prescribe or aim for, or when he works for justice through the means of just institutions, like a rich person giving money to humanitarian aid agencies, then, it can be said that the interactional and institutional perspectives are integrated. Also, oftentimes in real life, we do not always make the conscious distinction between the political and the personal, between the status of the citizen and of the person. This is because doing so could unnecessarily stretch the limits of human psychology (Kekes, 2003, p. 163). Nevertheless, while the possibility of integration may be possible, the possibility of conflict cannot be denied particularly in controversial and hard cases. Again, how would a legislator’s support for a mining company be judged normatively given an existing law permitting the operation of mining? How would a doting father who was found guilty of graft and corruption be ultimately judged? In the final analysis, it is difficult to resolve the tension that could likely occur in the moral dualism argument. Let me proceed to the second argument.

Educative Effect of Just Institutions

Although Rawls specifically limits the application of the justice principles to the basic institutions of society, it might be argued that this does not mean that such an arrangement has no implications for personal conduct. By the fact that individuals are members of various social institutions, the rules and practices of the latter can mold the choices and even character of these individuals albeit indirectly. Rawls (1999a) explicitly refers to this idea when he says that after the principles of justice have been chosen and after the just institutions are established on the basis of the principles of justice, the actual behaviour of persons will logically follow what the just institutions or rules prescribe. This whole process is called the ‘educative effect’ of just institutions upon individuals’ actions, inculcating in them a sense of justice. Rawls (1999a, p. 398) typifies this as the requirement of stability, the idea that ‘when institutions are just…those taking part in these arrangements acquire the corresponding sense of justice and desire to do their part in maintaining them’ (see Tan, 2004, p. 341). It is evident, therefore, that, for Rawls, so long as human character can be formed and not fixed, just institutions will shape people’s tastes and preferences in a just way, eliminating their propensities for injustice.

Let me illustrate this idea more concretely by taking up the case of the difference principle. According to Samuel Freeman (2007, p. 99), while the difference principle primarily regulates economic and legal institutions, it implies duties for individuals; in fact, it creates ‘innumerable duties’ for them in their everyday lives. How does this exactly happen? Freeman (2007, pp. 99–100) says that the difference principle applies in the first instance to economic and legal institutions particularly when legislators and regulators make decisions concerning the market, ‘the system of property, contract, inheritance, securities, taxation’, and so on. In other words, such a principle applies directly to legislators when they create rules governing consumption, trade, and production, when they debate about the common good, and when they enact laws to realize the common good. Interestingly, Freeman adds that the laws and norms enacted pursuant to the difference principle will, in turn, guide and regulate the behaviour of individuals in their daily lives. For example, the laws as regards taxation and inheritance will consequently affect the spending habits and consumption patterns of individuals. Freeman takes note of the fact that when an individual makes economic choices he does not think of the difference principle all the time. Because of lack of information, a consumer cannot be fully certain that he only buys goods from firms that promote the greatest advantage of the worse off. Yet, Freeman argues that so long as a person’s choices and actions are done on the basis of the enacted laws and rules governing trade and consumption pursuant to the difference principle, then, the difference principle applies to him as well, albeit indirectly.

To some extent, the idea of the ‘educative effect’ of institutions makes sense. Take, for instance, an organization characterized by just rules that produce significant impact on the attitudes and choices of the members. However, no matter its attractiveness, this way of describing the relation between institutions and individual actions might have been expressed too hurriedly. The problem is that the idea of an educative effect of institutions at least in Rawls’s theory of justice may not work in all circumstances. According to Amartya Sen (2009, p. 69), the idea that actual behaviour of individuals logically follows from the generation of principles of justice appears to be a ‘formulaic and drastic simplification’ of what is actually ‘a huge and multifaceted task.’ There is a huge gap between the choice of institutions in the ideal world and their translation into concrete guides in making judgement about justice in the real world where individuals live. People’s actual behaviour may or may not follow what the chosen just institutions and rules prescribe. Applied to the issue of justice, the generation of the principles of justice does not guarantee that actual (as opposed to ideal) patterns of behaviour of individuals are in line with reasonable behaviour even if everyone accepts the said principles. Individuals may still act on the basis of their personal preferences and tastes that run contrary to the demands of just institutions and rules. As such, Rawls has to fill in an explanatory gap between the just rules of institutions and the corresponding just actions of individuals in conformity to these rules.

In Rawls’s discussion on the problem of stability, he seems to allude to a solution. What would make an individual or group acquire the sense of justice given the existence of just institutions? In A Theory of Justice, Rawls employs the help of moral psychology to justify his view that his theory of justice will generate its own support. Working on the assumption that human nature is not inherently egoistic or basically good, Rawls (1999a, p. 414) believes that in a well-ordered society individuals can acquire a sense of justice as a matter of principle. Just institutions are obeyed and just principles are complied with not because of considerations for reward and punishment, ties of friendship or fellow-feeling, or for social approval. They are accepted mainly because, to use a Kantian language, of the dictate of one’s practical reason. The essential point here is that an individual has reached a particular level of moral development in which moral (or justice) principles are accepted because they are right and just (Rawls 1999a, p. 416). As such, the commitment to justice in this context is done out of conviction, that is, ‘wholehearted’ (Rawls, 2005, p. xl). What about the possibility of infractions? Rawls (1999a, p. 401) argues that the well-ordered society will correct this compliance problem itself through the ‘forces within the system’, for example, the penal devices or institutional coercion. Rawls (1999a, p. 416) also points out that infractions will generate ‘feelings of guilt and indignation’ in the individual. Paul Weithman (2010, p. 45, quoted by Klosko, 2015, pp. 239–240) calls this kind of stability as ‘inherent’ in that the well-ordered society is able to ‘generally maintain itself in a just general equilibrium and is capable of righting itself when the equilibrium is disturbed’ (see also Rawls, 1999a, p. 400).

Now, attractive as these proposals might sound, they pose a number of problems. First, the idea that individuals will eventually accept the principles of justice and obey the just institutions as a matter of principle as part of their moral development appears unrealistic. Granted that it is possible for some people to go through the different stages of moral development as described in A Theory of Justice, how common is this actually? As Klosko (2015, p. 246) points out, what percentage of the population actually acquires the sense of justice and ‘develop[s] a desire to apply and to act upon the principles of justice’ (Rawls, 1999a, p. 413)? Does Rawls refer to all the citizens of the well-ordered society or to people generally? The concern here requires empirical evidence, something which Rawls has failed to provide (Klosko, 2015, p. 246). And, second, it seems that Rawls fails to take into consideration the crucial role cultural attitudes play in the individual’s compliance with the principles of justice. Rawls’s view on moral development of persons appears to be simplistic in the sense that the three levels of moral development that individuals go through do not take into account cultural contexts. The experience of moral development of individuals is regarded not only as universally similar but also noncontroversial. This is contrary to people’s experience. The capacity of individuals to adhere and imbibe moral principles is largely influenced by cultural attitudes and cultural norms that individuals are born into and with which they grow up. In the end, the degree of compliance with the principles of justice is more nuanced: there might be strict compliance, but also partial compliance or even non-compliance.

Conclusion

I have attempted to explore the ways by which Rawls can respond to the critique on his thesis that the primary subject of justice is the basic structure of society and not personal conduct. More specifically, I have proposed two potential Rawlsian arguments, namely the moral dualism argument and the educative effect of institutions argument through which Rawls’s theory of justice can extended, in a more robust way, to include personal conduct. I have shown that although these two arguments appear attractive, they are not that straightforward. The moral dualism argument suffers from potential conflict between the principles that apply to the basic social institutions, and those that apply to extra-institutional personal conduct. Meanwhile, the educative effect of institutions argument appears too presumptuous, in that actual behaviour of individuals does not automatically follow what just institutions prescribe. In the final analysis, Rawls’s potential responses to include personal conduct in the subject of justice are difficult to sustain.