Justice as evenhandedness
Since the appearance of Rawls’s A Theory of Justice in 1971,1 the phrase ‘justice as fairness’ has conjured up the idea that to treat people fairly we must regard people abstractly, taking into account only generic human interests (such as primary goods) rather than particular identities and commitments.
This conception of fairness is closely associated with the view that liberal states ought to be neutral between competing conceptions of the good. Individuals should be free to make their own choices in the light of what they regard as valuable and important. The task of the political community is to provide a framework within which they can make those choices under equal circumstances, not to support or undermine any particular choice. On this account, justice requires a hands off approach to culture and identity out of respect for the equality and freedom of individuals. The state has no business supporting or opposing any particular identity or culture.
There is another conception of justice as fairness, however, which is derived from the assumption that to treat people fairly we must regard them concretely, with as much knowledge as we can obtain about who they are and what they care about. This way of thinking about justice owes a great deal to the work of feminist theorists who have emphasized the moral importance of paying attention to the concrete and the particular.2
This approach entails immersion rather than abstraction. It emphasizes contextually sensitive judgments more than general principles. It requires our institutions and policies to take an evenhanded (rather than a hands off) approach in responding to the claims that arise from different conceptions of the good, including matters of culture and identity. And it opens the door to the idea that we may sometimes come closer to equality by adopting practices of differentiated citizenship than by insisting on identical formal rights.
There are obvious tensions between these two conceptions. An ideal of neutrality will permit us to recognize publicly only thin forms of identity and culture, if any; an ideal of evenhandedness will be open to public support for much thicker versions of identity and culture. Nevertheless, I believe that both the idea of achieving fairness through neutrality and the idea of achieving fairness through evenhandedness have something important to contribute to a fuller understanding of justice. To explain why, I will first show why liberal democratic states cannot be completely neutral with respect to culture and then why a modified version of the neutrality ideal still has considerable power. Then I’ll contrast the appeal of this modified neutrality ideal with that of evenhandedness.
Why can’t liberal democracies simply take a hands off approach to culture and identity? I want to point to three kinds of answers to this question, the first involving the cultural prerequisites of liberal democracy itself and the other two the inevitable cultural specificity of any particular liberal democratic regime.
A number of contemporary theorists have argued that principles and institutions are not enough to sustain liberal democratic regimes.3 For liberal democracies to work properly and to endure over time, certain norms, attitudes, and dispositions must be widely shared among the population. Thus liberal democracies require a liberal democratic political culture. This political culture is not neutral because it fits better with some ways of life and conceptions of the good than with others.
The liberal democratic culture required to sustain liberal democratic institutions is a generic culture, not a specific one. In this sense, every liberal democracy has the same cultural prerequisites. For example, in a recent article, Veit Bader provides a list of what he calls the generic virtues of liberal democratic politics.4 This would include dispositions to respect the rights of others, to engage in public debate while listening to others, to resolve disputes peacefully, to respect democratic procedures, and so on. The virtues are generic because they distinguish liberal democracies from other sorts of regimes but not one liberal democracy from another. They tell us what it means to be a liberal democrat, but not what it means to be a German or American or Indian citizen.
How should we regard these more particular national cultures and identities from a liberal democratic perspective? Don’t they conflict with the liberal democratic commitment to equal citizenship and individual freedom? Sometimes they clearly do, as when a conception of national identity leads to people being inappropriately excluded from formal citizenship. In Germany, for example, because of the links between ethnicity and citizenship in German political culture, most of the grandchildren of Turkish guest workers are not German citizens even though they, and often their parents, have lived all their lives in Germany.
Moreover, even when national identities and conceptions of citizenship are publicly proclaimed to be free of ethnicity and open to all who choose to join, they may covertly reflect a particular dominant culture and identity whose prominence subordinates and excludes others. I have argued elsewhere that this is the case with the French version of secularism, and Bader contends that the objection applies more generally to the French and American versions of national identity.5
Given these dangers, why not try to disentangle liberal democratic citizenship altogether from national or ethnic identities and cultures, relying only on a generic liberal democratic identity and culture for the support needed to maintain and reproduce liberal democratic institutions and practices? This initial modification of the neutrality ideal acknowledges that liberal democracy itself supports some values and ways of life and undermines others, but it seeks to draw a line between the unavoidable cultural consequences of liberal democratic commitments and any other kind of support for or opposition to particular cultures and identities. Fairness requires neutrality with respect to the latter.
One objection to this version of the neutrality ideal is that it is impossible. Despite the dangers posed by many actual versions of national culture and identity, we cannot aspire to the complete disentanglement of liberal democracy from specific national cultures and identities for two reasons. The first reason has to do with the indeterminacy of liberal democratic principles. No liberal democratic state may legitimately exclude citizens from the franchise on the basis of race or gender, but there are different acceptable ways of institutionalizing representation, the protection of rights, and so on. Both Canada and the United States are liberal democracies, but the Canadian version of liberal democracy is different in significant ways from the American one. The same is true of other liberal democracies.
While I criticize certain aspects of French secularism or German citizenship policy, most of the distinctive features of French and German political institutions and policies seem to me entirely defensible. Such differences reflect (at least in part) differences of national history and culture and they construct (at least in part) differences of national identity. It would be a bold soul who would argue that there is only one right way to instantiate liberal democratic institutions and policies. Yet as Hegel pointed out in the Philosophy of Right in his discussion of the transition from abstract morality to ethical life, the instantiation of principles in concrete institutions transforms the principles even as it realizes them.6 To put it another way, every liberal democracy is inevitably culturally specific precisely because of the particular way in which it is a liberal democracy. We should not try to construe this particularism as culturally neutral simply because it is inevitable.
There is a second reason why every liberal democratic regime is inevitably culturally specific, one that has been particularly emphasized by Will Kymlicka in his important work Multicultural Citizenship.7 Kymlicka’s key argument against an unqualified version of liberal neutrality toward culture is that every state will have to choose what languages to use for official business, how to draw internal political boundaries, and what powers to assign to sub-units. Such choices have important implications for specific identities and cultures within the state. The choice of one language rather than another can never be regarded as culturally neutral, even if it is inevitable.
While complete cultural neutrality is impossible, this may be less damaging to the ideal of cultural neutrality than is sometimes suggested by Kymlicka and others. The fact that some development is inevitable does not mean that we should meekly accept it. As Rousseau observes in the Social Contract, ‘It is just because the force of things tends always to destroy equality, that the force of legislation should tend always to uphold it.’8 In the same vein we might conclude that the inevitability of cultural particularism means only that we should strive to keep it to a minimum.
From this perspective, we could regard cultural particularism as a regrettable necessity, something to be accepted only when unavoidable and to be avoided as much as possible. We have to make some choice about what language(s) we will use in governmental business and in public education, but we can avoid many other particularistic cultural commitments. Even the generic cultural requirements of liberal democracy might be regarded in the same light, so that we should respect non-liberal cultural commitments as much as is possible without threatening the basic stability of the liberal democratic regime. This is essentially a reassertion of the neutrality ideal modified by the recognition that it can never be fully achieved and will always serve only as a regulative ideal.
The attractions of this ideal seem obvious. It is not fair to make people conform to a culture and an identity that they have not accepted for themselves, or to marginalize them if they don’t, at least when it is possible to avoid doing so. Elsewhere I have drawn implicitly upon this conception of fairness as neutrality in arguing for the limits to what receiving states may demand of immigrants by way of cultural adaptation.9 From this perspective, it seems possible to require respect for liberal democratic principles and to justify some demands for linguistic adaptation. But to be compatible with the modified neutrality ideal, any identities or cultural commitments that the political community expects or promotes for all must remain very thin.
An alternative answer to the question of what liberal democratic justice requires with respect to culture and identity is what I call the ideal of evenhandedness. The guiding idea of evenhandedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity. Instead of trying to abstract from particularity, we should embrace it, but in a way that is fair to all the different particularities.
Now being fair does not mean that every cultural claim and identity will be given equal weight but rather that each will be given appropriate weight under the circumstances within the framework of a commitment to equal respect for all. History matters, numbers matter, the relative importance of the claims to the claimants matters, and so do many other considerations. This approach allows for public recognition and support for much thicker versions of culture.
Take a specific example. In Europe and North America, having Sunday as a common pause day clearly reflects Christian norms and makes it easier for Christians to go to church (even though most of them don’t). Should we abolish the common pause day altogether or choose one (like Wednesday) that has no cultural or religious significance for anyone? From the modified neutrality perspective, this seems like just the sort of policy that is required, given that the selection of a common pause day with some religious or cultural significance is not inevitable. From that perspective, this seems the only way to treat people fairly.
But if we think that fairness requires us to pay attention to and respect people’s identities and cultural commitments rather than ignore them, then we may respond differently. Making Wednesday a holiday instead of Sunday makes Christians worse off and doesn’t make anyone else better off. So, we shouldn’t abolish the Sunday holiday but should think instead about how to respond to the comparable interests of others, say by guaranteeing time off to those who worship on other days or permitting them to keep their businesses open on Sundays if they close them for religious reasons on another day. These sorts of policies aspire to fairness rather than formal equality in the treatment of different religious groups. They seek to be evenhanded, while taking into account relevant differences in the numbers of religious adherents and (perhaps more controversially) the role of a given religion in the history of the country.
What counts as evenhandedness is obviously open to contestation, though that is true also of neutrality. In any event, it is a conception to which minority religious groups often appeal in challenging the status quo. For example Muslims implicitly employ it when they argue that it is unfair for the British to provide financial support for Christian and Jewish schools but not for Muslim ones or for a city in Ontario to withhold a building permit for a mosque on technical grounds regarding parking requirements that would be waived for other religious denominations. What they are asking for is not neutrality in the form of equal indifference but evenhandedness in the form of comparable support.
What about the non-religious? On the one hand, we might say it doesn’t hurt them to have their day off on Sunday. On the other hand, the exemption policy for non-Christians clearly favours religious activities over other sorts. People are guaranteed time off for prayer but not for baseball or bingo, given exemptions from Sunday closing laws for religious reasons but not for other sorts of personal preferences. Is that unfair? That depends in part on whether one considers it acceptable to make political judgments differentiating more fundamental interests from less fundamental ones. The idea of fairness as evenhandedness requires that sort of judgment; fairness as neutrality, even in its modified version, prohibits it (apart from the interests directly derived from liberal democratic citizenship or some notion of universal primary goods).
Aconception of fairness as evenhandedness encourages us to pay attention to forms of wisdom embedded in our institutions and practices that may not be adequately reflected in prevailing theoretical formulations. All liberal democratic states have practices that are hard to reconcile with exclusive reliance on the conception of fairness as neutrality, not only in the area of religion but also in many other areas of public policy as well. For example, consider public expenditures on recreational activities. Should we spend money on a bocce court or on a baseball diamond?
The answer is not culturally neutral. Indeed, in existing regimes, there are very few public expenditures that are truly neutral between competing conceptions of the good and very many that support particular cultures or identities in one way or another. Frequently that is the point of the expenditure. It is hard to know what space would be left for ordinary politics if we were to take seriously even the modified version of the neutrality ideal as our sole guide. By contrast, the ideal of evenhandedness provides a critical perspective, but one that is not so much at odds with the way liberal democratic states have come to address not only problems of culture and identity but many other political issues as well.
In the same vein, thinking about fairness as evenhandedness may correspond more closely to our intuitive sense of what justice requires in a variety of situations where questions of culture and identity are at stake. To determine what justice requires in a particular case one must often immerse oneself in the details of the case and make contextually sensitive judgments rather than rely primarily on the application of abstract general principles.
Despite the many virtues of thinking about fairness as evenhandedness, I do not want to abandon entirely the conception of fairness as neutrality (in its modified form). In some contexts, what justice requires is that the state take a hands off approach to culture and identity. In my view both conceptions of fairness play important roles in practice in the institutions and policies of liberal democratic states, and both should play important roles in any satisfactory critical account of what liberal democratic justice requires. Though they stand in considerable tension with one another, each one must supplement and constrain the other.
I have not yet worked out a general theoretical account of how this would work and how the two ideals might be reconciled in principle, but, in the forthcoming work from which this essay is drawn, I try to show that such a reconciliation is possible in practice. The idea of justice as evenhandedness deserves particular attention today, however, because that conception has received less explicit attention in contemporary discussions of justice.
*This essay is adapted from the introductory chapter of my book Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness, Oxford University Press, forthcoming, Spring 2000.
1. John Rawls, A Theory of Justice, Harvard University Press, Cambridge, Massachusetts, 1971.
2. See for example Carol Gillian, In a Different Voice: Psychological Theory and Women’s Development, Harvard University Press, Cambridge, Massachusetts, 1982; Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, New Jersey, 1990; Seyla Benhabib, ‘The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy in Feminist Theory’, in Feminism as Critique: On the Politics of Gender edited by Seyla Benhabib and Drucilla Cornell, University of Minnesota Press, Minneapolis, 1987; Jennifer Nedelsky, ‘Embodied Diversity and the Challenges to Law’, McGill Law Journal 42, 1977, pp. 91-117.
3. Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism, Clarendon Press, Oxford, 1990; William Galston, Liberal Purposes: Goods, Virtues and Diversity in the Liberal State, Cambridge University Press, Cambridge, 1991; Veit Bader, ‘The Cultural Conditions of Transnational Citizenship: On the Interdependence of Political and Ethnic Cultures’, Political Theory 25(6), 1997, 771-813; Richard Dagger, Civic Virtues: Rights, Citizenship and Republican Liberalism, Oxford University Press, New York, 1997.
4. Veit Bader, op. cit.
5. Joseph H. Carens and Mellisa Williams, ‘Muslim Minorities in Liberal Democracies: The Politics of Misrecognition’, in Secularism and its Critics by Rajeev Bhargava (ed), Oxford University Press, Delhi, 1998, pp. 137173; Veit Bader, op. cit.
6. Georg Wihelm Friedrich Hegel, Philosophy of Right translated by T.M. Knox, Clarendon Press, Oxford, 1962.
7. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, Oxford, 1995.
8. Jean-Jacques Rousseau, On the Social Contract, with Geneva Manuscript and Political Economy , edited by Roger D. Masters and translated by Judith R. Master, St. Martin’s Press, New York, 1978.
9. Joseph H. Carens, ‘Immigration, Political Community, and the Transformation of Identity: Quebec’s Immigration Policies in Critical Perspective’, in Is Quebec Nationalism Just? Perspectives from Anglophone Canada by Joseph H. Carens (ed), McGill-Queen’s University Press, Montreal, 1995, pp. 20-81.