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Toward an Understanding of Classical Chinese Medicine, Part 2: From Classical to Traditional Chinese Medicine

Our first post in the series is here.

Even if one believes that the theory and praxis of Classical Chinese Medicine (CCM) should be subject in its entirety to the scientific adjudications of what has come to be called evidence-based medicine (EBM) (and I do not believe it should be wholly subject to such a sieve), it is possible to at least imagine how CCM might fall under the rubric of “science” generally in a broad and historically-based construal of the meaning of such an enterprise, as one of the pioneers in the cross-cultural study of CCM, Nathan Sivin, has argued:

“The data collected over the centuries about the body, health and disorders were structured by the concepts of Nature…[of proto-Taoist and ancient provenance], forming a coherent body of theory used to diagnose and treat illness. Classical [Chinese] medicine deserves the adjective ‘scientific’ no less (but no more) than its counterparts in Western culture until recent times. [….] What we call medicine incorporated and imposed order on experience related to every aspect of health, disease, and injury. One Chinese scheme of its major divisions include theoretical studies of health and disorder; therapeutics; the theory and practice of longevity techniques, including sexual hygiene; pharmacognosy, and veterinary medicine. [….] Prescriptions made up of both crude drugs and extracts were commonly used in combination with a great variety of other therapeutic means, including acupuncture and moxibustion.” (Sivin 1990: no pagination)

The fact that we can make sense of Sivin’s description as giving as an introduction to a science of sorts, that we find it intelligible and plausible, speaks to the question of commensurability or incommensurability between CCM and Western scientific medicine, which is clearly a matter of degree (cf. medicine in the West ‘until recent times’ above) and is arguably aspectual in nature. Or, we might see the relation between EBM and CCM as in some ways analogous to that between laws and social norms, two sets of “rules,” the former formal and the latter informal, with some conceptual and practical overlap between the two sets, and including mutual interaction between at least some of the parts of both sets (as when, for example, social norms give way to laws or laws reinforce or even bring into being social norms). The sets are therefore distinguishable, and thus there is some measure of prima facie incommensurability owing to linguistic, conceptual, ontological and explanatory differences between EBM and CCM we have yet to discuss (and thus deserve systematic exploration). Finally, and perhaps most importantly, we might begin to think what is could mean for EBM to be diagnostically, physiologically, and therapeutically focused on the body, while CCM encompasses the whole person (herein lies the intuitive attraction of ‘holistic’ medicine): the body in this case including the “heart-mind,” xin (or ‘mind-heart,’ the source of both intellectual and emotional reactions, encompassing what we intend by the term ‘consciousness’ in cognitive and conative senses, but even more, the notion of mind, where mind is not reducible to the brain and the body is a necessary but not sufficient condition for the mind, the latter extending out into the world, as we say). Xin lies at the heart of the Chinese understanding of the person or shenti. As Yanhua Zhang explains, while shenti can be translated as “body,” it does not have the “container” connotations one finds in English (and derived from its roots in Old German) and the associated images of a physical, objective, and anatomical entity. Shenti, writes Zhang, “implies a person or self with all the connotations of the physical, social, and mindful” (2007: 55). 

For now, let us cash in our earlier promissory note on the difference in meaning between what is termed “Traditional Chinese Medicine” (TCM) and CCM. Oddly perhaps, it so happens that TCM is not, in fact, traditional Chinese medicine, and thus what is ostensibly meant by the term is more accurately called Classical Chinese Medicine. Perhaps we’re a bit jaded when it comes to the precise scope of such nomenclature: the World Series in baseball is not truly global, and most of us are familiar with euphemisms and doublespeak like “Peacekeeper Missile,” “collateral damage” and “pacification programs.” In many not insignificant respects, it so happens that TCM is decidedly modern, a selective appropriation of specific medical modalities mined from what is better termed Classical Chinese medicine (CCM). What was christened “TCM” in the second half of the twentieth involves the ideological legitimation (see below for the motley motivating interests) and selective use of classical Chinese diagnostic techniques and therapeutic regimens by the People’s Republic of China (PRC) under Mao Zedong in the late 1950s and early 1960s. Whatever one thinks of the specific ideological rationale for the recognition of the therapeutic value of CCM among Chinese Communists under Mao, it is important to recognize that Western science and medicine has not been allowed to wholly trump indigenous medical doctrines and therapeutic modalities and practices in China, thus “Diversity is observable at every level of Chinese medical discourse and practice” (Zhang: 9), and TCM is not subject to the sieve of Western biomedicine, let alone EBM.

At first the Communists followed in the footsteps of their Nationalist government opponents in characterizing traditional Chinese medicine as exemplifying superstition and magical thinking, in other words, a theory and practice inimical to modernity in general and Western biomedicine (xiyi) in particular. Interestingly, from the early nineteenth to early twentieth centuries in China there was an effort toward a via media or rapprochement between the old and the new from within the medical profession by those committed to the hallowed “ideal of the broadly educated master physician” (the movement now referred to as the Chinese-Western Integration School) as they attempted to incorporate some features of modern biomedicine “into the traditional mother body of Chinese medicine” (Fruehauf 1999, sans pagination). The terms of this incorporation, however, were set by the parameters of CCM. This endeavor was historically superseded by the naked politicization of Chinese medicine in the first half of the twentieth century when adjectives denoting and connoting the traditional properties of CCM, much like the Confucian worldview, became “despicable symbol[s] of everything old and backward” (Fruehauf), the Nationalists and Communists alike adopting attitudes akin to the Jacobin revolutionaries toward the ancien régime.

Mao’s later public embrace of CCM (as TCM) garnered widespread support among the masses, a noticeable portion of which had earlier taken to the streets when Kuomintang public health officials initiated legislative proposals with the goal of abolishing the “Old Medicine.” Baptised “Traditional Chinese Medicine,” colleges became its first institutional vehicle, with hospitals and clinics as well soon vigorously propagating putatively traditional Chinese medicine. While nominally hearkening back to an earlier era, Mao clarified the nature of State-directed TCM, speaking of “Chinese-Western medicine integration” in a manner that assured everyone that classical Chinese medicine would no longer be transmitted through the venerable hands of its lineage holders, that is, from master to disciple, with modes of transmission primarily “secret” and “personal” (cf. Hsu 1999). To be sure, Mao’s programmatic efforts to modernize Chinese medicine, in effect to standardize its knowledge and practice with the considerable resources available to the State, has long and well-established precedent in Chinese history. But standardization in this case is accomplished in reliance on philosophical, political, bureaucratic, scientific, technological, and pedagogical ideas, methods and institutions ineluctably associated with modernity. Of course it is naïve, even fantastical, to think CCM could carry over into our time and place unscathed or unaffected by a confrontation (at the levels of both doctrine and practice) with this or that facet of modernity (if you prefer, post-modernity). But we might consider—as a thought-experiment, an act of imaginative counterfactual reasoning—how the nature and pace of such a confrontation (and negotiation) might vary, depending on several sorts of variables, for example, its leading agents: The State? Physicians? Regional public health officials? Politicians? Physicians and their patients? Sectors of civil society free from State coordination or manipulation electoral outcomes? And so on. Hsu (1999) proffers the following motivating interests in support of the official and informal ideological sanctioning of TCM in the People’s Republic of China: “nationalism, Confucian values, humanitarian ideals, reformist and Enlightenment movements, the pragmatic politics of a party in pursuit of power, and economic considerations fo how to allocate manpower and scarce resources” (7). These motley interests remind us why we should distinguish between TCM and CCM, even if the latter has also been subject to historical forces that assure us its doctrine and therapies have never been frozen in time (cf. the reasons for Peter Eckman’s (2007) further distinction between TCM and ‘TOM,’ traditional Oriental medicine, the ‘mother discipline’ from which the former emerged). 

CCM is in a subordinate and severely circumscribed role vis-à-vis not only Western biomedicine but TCM as well, a result of Mao’s vision of “Chinese-Western medicine integration,” as Hsu makes clear: “TCM…is generally referred to as the ‘modernised’ (xiandaihuade), ‘scientific’ (kexuehuade), ‘systematic’ (xitonghuade), and ‘standardised’ (guifanhuade) Chinese medicine” (7). Insofar as traditional or classical Chinese medicine is indissolubly bound up with ancient religio-philosophical ideas (e.g., dao [or tao], qi [or ch’i], yin/yang, wuxing [Five Phases], and shen [spirit]) essential to its doctrine, as well as shamanic, temple-based, divinatory, qigong (breath control or meditation), and home-based herbal drug and other pre-modern practices that conspicuously clash with Mao’s variation on the Marxist-Leninist ideological theme, it is not too difficult to distinguish TCM from CCM. Indeed, Mao’s “Chinese-Western medicine integration,” as TCM, calls to mind Eric Hobsbawm’s oft-cited because important observation that “‘Traditions’ which appear or claim to be old are often quite recent in origin and sometimes invented” (Hobsbawm and Ranger 1983: 1). Insofar as biomedical science and EBM serve as the sieve through which classical Chinese therapeutic modalities must pass before they are rationally or scientifically (hence medically) acceptable in the West, it would appear biomedicine is following in Mao’s footsteps: “At the least traditional end of the spectrum, dominant during the Cultural Revolution, acupuncture became merely a form of physical therapy devoid of any theoretical basis” (Eckman 2007: 182). And those attracted to TCM because they are generally enamored of all things exotic and Orientalist, might consider the fact that acupuncture and moxibustion had been used in Europe for roughly 300 years and were popular among physicians in early nineteenth century America before their recent ascendancy as a therapeutic regimen prominent in alternative or complementary medicine (see Sivin 1990, no pagination).  All the same, it would be inaccurate to portray TCM as a rigid, unchanging discipline. Actually, depending on the political climate at the time, TCM has encompassed a wide variety of approaches—although it has never explicitly accommodated the more mystical, spiritual and shamanistic practices. Nevertheless, even that may be changing with the recent interest in the medical uses of both external and internal Qi Gong. These practices are inextricably connected to meditation and other “spiritual” methods, and as yet have no experimentally verifiable material basis (Eckman 2007: 89).

Chinese Communists have of course stressed the limitations of the historically dominant model of physicians identified as “largely [an] hereditary office holding elite before the present millenium, but one based increasingly on wealth and achievement from the eleventh century on” (Sivin 1999). Furthermore, and consequently, they keenly appreciate the historical distinction “between the relatively few literate, well-born physicians who left the enormous written record, and the plebian practitioners of every stripe, generally illiterate for most of Chinese history, who cared for the overwhelming majority of the population” (Sivin, 1999). And yet the “enormous written record” referred to here, as Sivin says, was not primarily or merely “abstact bodies of theories, but keys to diagnosis, prognosis, and therapy. Mastering them was a necessary step on the way to becoming a good doctor.” To repeat: such mastery was achieved in the intimate interpersonal context of the master/student relationship defined by its personal and secret modes of transmission of medical knowledge and practice. The distinction between elite and plebian doctors was (and is) transcended in part by the nature of the transformation of CCM into TCM under the aegis of the PRC, effectively serving to democratize aspects of CCM that were once the prerogative of well-born physicians and their equally if not better-placed patients. I would argue that one salutary aspect of this democratization was well expressed in China’s “barefoot doctor” program, an ambitious, imaginative, and long-overdue attempt to extend the concrete achievements and virtues of urban public health into the countryside (on the eve of the 1949 revolution, about 80 percent of the population were rural peasants). Still, the “democratization” of Chinese medicine (e.g., the ‘barefoot doctor’ program) has been purchased at a high price: Recent institutional developments, most of them tied to market imperatives and priorities established in the wake of “cowboy capitalism” in China and which give pride of place to Western medical concepts and practices, are “finaliz[ing] the process of ‘evolution by integration’ that Mao had prescribed for Chinese medicine  40 years ago—a process that involves gutting the indigenous art of its spirit and essence [or religious and philosophical warrant] and subsequently appropriating its material hull (i.e., herbs and techniques) into the realm of a medicine that declares itself scientifically superior” (Fruehauf 1999).

References & Further Reading:

• Adler, Jonathan, “Epistemological Problems of Testimony,” The Stanford Encyclopedia of Philosophy (Fall 2012) Edward N. Zalta (ed.)                  http://plato.stanford.edu/archives/fall2012/entries/testimony episprob/.
• Angell, Marcia. “The Epidemic of Mental Illness: Why?,” The New York Review of Books, June 23, 2011.
• Angell, Marcia. “The Illusions of Psychiatry,” The New York Review of Books, July 14, 2011.
• Bensky, Dan and Randall Barolet. Chinese Herbal Medicine: Formula and Strategies. Seattle, WA: Eastland Press, 1990.
• Bensky, Dan, Steven Clavey, and Erich Stöger. Chinese Herbal Medicine: Materia Medica. Seattle, WA: Eastland Press, 3rd ed., 2004. 
• Bensoussan, Alan. The Vital Meridian: A Modern Exploration of Acupuncture. Melbourne: Churchill Livingstone, 1991.
• Bivins, Roberta. Alternative Medicine? A History. New York: Oxford University Press, 2007.
• Brody, Howard. Placebos and the Philosophy of Medicine: Clinical, Conceptual, and Ethical Issues. Chicago, IL: University of Chicago Press, 1980.
• Clark, Barry, tr. The Quintessence Tantras of Tibetan Buddhism. Ithaca, NY: Snow Lion Publications, 1995.
• Clifford, Terry. Tibetan Buddhist Medicine and Psychiatry: The Diamond Healing. Delhi: Motilal Banarsidass, 1994 (1984).
• Coady, C.A.J. Testimony: A Philosophical Study. Oxford, UK: Oxford University Press, 1992.
• Cohen, Michael H. Healing at the Borderland of Medicine and Religion. Chapel Hill, NC: University of North Carolina Press, 2006.
• Dallmayr, Fred. Beyond Orientalism: Essays on Cross-Cultural Encounter. Albany, NY: State University of New York Press, 1996.
• Dhonden, Yeshi (B. Alan Wallace, tr. and ed.) Healing from the Source: The Science and Lore of Tibetan Medicine. Ithaca, NY: Snow Lion Publications, 2000.
• Dupré, John. Human Nature and the Limits of Science. New York: Oxford University Press, 2001.
• Eckenweiler, Lisa A. and Felicia G. Cohen, eds. The Ethics of Bioethics: Mapping the Moral Landscape. Baltimore, MD: Johns Hopkins University Press, 2007.
• Eckman, Peter. In the Footsteps of the Yellow Emperor: Tracing the History of Traditional Acupuncture. San Francisco, CA: Long River Press, 2007.
• Evans, Dylan. Placebo: Mind over Matter in Modern Medicine. New York: Oxford University Press, 2004.
• Farquhar, Judith. Knowing Practice: The Clinical Encounter of Chinese Medicine. Boulder, CO: Westview Press, 1994.
• Fawley, Daivd. Yoga & Ayurveda: Self-Healing and Self-Realization. Twin Lakes, WI: Lotus Press, 1999.
• Fruehauf, Heiner. “Chinese Medicine in Crisis: Science, Politics, and the Making of ‘TCM,’” The Journal of Chinese Medicine, 61/6, October 1999. Online version (slightly longer): http://www.classicalchinesemedicine.org/ccm/index.htm 
• Gillet, Grant. Bioethics in the Clinic: Hippocratic Reflections. Baltimore, MD: Johns Hopkins University Press, 2004.
• Goldman, Alvin I. Knowledge in a Social World. New York: Oxford University Press, 1999.
• Godden, David M. and Douglas Walton. “A Theory of Presumption for Everyday Argumentation,” Pragmatics & Cognition 15: 2 (2007): 313-346.
• Gyatso, Desi Gyatso (Gavin Kilty, tr.) Mirror of Beryl: A Historical Introduction to Tibetan Buddhism. Boston, MA: Wisdom Publications, in association with the Institute of Tibetan Classics, 2010.
• Gyatso, Thinley and Chris Hakim. Essentials of Tibetan Traditional Medicine. Berkeley, CA: North Atlantic Books, 2010.
• Hacking, Ian. The Social Construction of What? Cambridge, MA: Harvard Unviersity Press, 1999.
• Hacking, Ian. Historical Ontology. Cambridge, MA: Harvard University Press, 2002.
• Harrington, Anne. The Cure Within: A History of Mind-Body Medicine. New York: W.W. Norton & Co., 2008.
• Harrington, Anne, ed. The Placebo Effect: An Interdisciplinary Exploration. Cambridge, MA: Harvard University Press, 1999.
• Heinze, Ruth Inge. Trance and Healing in Southeast Asia Today. Bangkok: White Lotus Press, 2nd ed., 1997.
• Hobsbawm, Eric and Terence Ranger, eds. The Invention of Tradition. Cambridge, UK: Cambridge University Press, 1983.
• Hsu, Elisabeth. The Transmission of Chinese Medicine. Cambridge, UK: Cambridge University Press, 1999.
• Hsu, Elisabeth, ed. Innovation in Chinese Medicine. Cambridge, UK: Cambridge University Press, 2001.
• Huang Ti Nei Ching Su Wên (The Yellow Emperor’s Classic of Internal Medicine) Ilza Veith, trans. Berkeley, CA: University of California Press, 2002.
• Kaptchuk, Ted J. The Web That Has No Weaver: Understanding Chinese Medicine. Chicago, IL: Contemporary Books, 2nd ed., 2000.
• Kolber, Adam J. “A Limited Defense of Clinical Placebo Deception,” Yale Law & Policy Review, Vol. 26, 2007; San Diego Legal Studies Paper No. 07-87. Available at SSRN: http://ssrn.com/abstract=967563.
• Kuriyama, Shigehisa. The Expressiveness of the Body and the Divergence of Greek and Chinese Medicine. New York: Zone Books, 1999.
• Leslie, Charles and Alan Young, eds. Paths to Asian Medical Knowledge. Berkeley, CA: University of California Press, 1992.
• Lloyd, Geoffrey and Nathan Sivin. The Way and the Word: Science and Medicine in Early China and Greece. New Haven, CT: Yale University Press, 2002.
• Maciocia, Giovanni. The Foundations of Chinese Medicine. Edinburgh: Churchill Livingstone, 1989.
• Maciocia, Giovanni. Diagnosis in Chinese Medicine: A Comprehensive Guide. Edinburgh: Churchill Livingstone, 2004.
• Maciocia, Giovanni. The Practice of Chinese Medicine: The Treatment of Diseases with Acupuncture and Chinese Herbs. Edinburgh: Churchill Livingstone, 2nd ed., 2007.
• Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
• Moerman, Daniel E. Meaning, Medicine, and the “Placebo Effect.” Cambridge, UK: Cambridge University Press, 2002.
• Mou, Bo, ed. Comparative Approaches to Chinese Philosophy. Burlington, VT: Ashgate, 2003.
• Mou, Bo, ed. Two Roads to Wisdom? Chinese and Analytic Philosophical Traditions. Chicago, IL: Open Court, 2001.
• Needham, Joseph, et al., eds. Science and Civilisation in China, 7 Vols. Cambridge, UK: Cambridge University Press, 1954--.
• Porkert, Manfred. The Theoretical Foundations of Chinese Medicine. Cambridge, MA: MIT Press, 1974.
• Putnam, Hilary (James Conant, ed.). Realism with a Human Face. Cambridge, MA: Harvard University Press, 1990.
• Putnam, Hilary (James Conant, ed.). Words and Life. Cambridge, MA: Harvard University Press, 1994.
• Putnam, Hilary. The Threefold Cord: Mind, Body, and World. New York: Columbia University Press, 1999.
• Rescher, Nicholas. The Limits of Science. Pittsburgh, PA: University of Pittsburgh Press, 1999 ed.
• Rescher, Nicholas. Nature and Understanding: The Metaphysics of Science. New York: Clarendon/Oxford University Press, 2000.
• Rescher, Nicholas. Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective. Pittsburgh, PA: University of Pittsburgh Press, 2001a.
• Rescher, Nicholas. Philosophical Reasoning: A Study in the Methodology of Philosophizing. Malden, MA: Blackwell, 2001b.
• Rescher, Nicholas. Epistemology: An Introduction to the Theory of Knowledge. Albany, NY: State University of New York Press, 2003.
• Rosemont, Henry, Jr. Rationality and Religious Experience: The Continuing Relevance of the World’s Spiritual Traditions. Chicago, IL: Open Court, 2001.
• Rossi, Elisa. Shen: Psycho-Emotional Aspects of Chinese Medicine. Edinburgh: Churchill Livingstone, 2007.
• Salguero, C. Pierce. Traditional Thai Medicine: Buddhism, Animism, Ayurveda. Prescott, AZ: Hohm Press, 2007.
• Scheid, Volker. Chinese Medicine in Contemporary China: Plurality and Synthesis. Durham, NC: Duke University Press, 2002.
• Scheid, Volker. Currents of Tradition in Chinese Medicine, 1626-2006. Seattle, WA: Eastland Press, 2007.
• Sivin, Nathan. Traditional Medicine in Contemporary China. Ann Arbor, MI: Center of Chinese Studies, University of Michigan, 1987.
• Sivin, Nathan. “Science and Medicine in Chinese History,” 1990. Available: http://ccat.sas.upenn.edu/~nsivin/writ.html.
• Sivin, Nathan. “Text and Experience in Early Chinese Medicine,” 1999. Available: http://ccat.sas.upenn.edu/~nsivin/writ.html.
• Stanley, Jason and Timothy Williamson. “Knowing How,” Journal of Philosophy, 98.8 (2001): 1-40.
• Strickmann, Michel (Bernard Faure, ed.). Chinese Magical Medicine. Stanford, CA: Stanford University Press, 2002.
• Tauber, Alfred I. Patient Autonomy and the Ethics of Responsibility. Cambridge, MA: MIT Press, 2005.
• Thagard, Paul. How Scientists Explain Disease. Princeton, NJ: Princeton University Press, 1999.
• Thagard, Paul and Jing Zhu. “Acupuncture, Commensurability, and Conceptual Change,” in Sinatra, G.M. and P. R. Pintrich, eds. Intentional Conceptual Change. Mahwah, NJ: Erlbaum, 2003: 79-102. Available at http://cogsci.uwaterloo.ca/Articles/Pages/Disease.html 
• Thagard, Paul. “What is a Medical Theory?” in Ray Paton and Laura A. McNamara, eds. Multidisciplinary Approaches to Medicine, Vol. 3. Amsterdam: Elsevier B.V., 2006: 47-62. Available at Professor’s Thagard’s articles page for “Science and Medicine Articles:” http://cogsci.uwaterloo.ca/Articles/Pages/Disease.html
• Turner, Leigh. “Bioethics in a Multicultural World: Medicine and Morality in Pluralistic Settings,” Health Care Analysis, Vol. II, No. 2, June 2003: 99-117.
• Unschuld, Paul U. Nan-Ching: The Classic of Difficult Issues. Berkeley, CA: University of  California Press, 1986.
• Unschuld, Paul U. Medicine in China: A History of Ideas. Berkeley, CA: University of California Press, 1988.
• Wallace, B. Alan. Choosing Reality: A Buddhist View of Physics and Mind. Ithaca, NY: Snow Lion, 1996.
• Walton, Douglas. Appeal to Expert Opinion: Arguments from Authority. University Park, PA: Pennsylvania State University Press, 1997.
• Williams, Michael. Problems of Knowledge: A Critical Introduction to Epistemology. New York: Oxford University Press, 2001.
• Wong, David. “Comparative Philosophy: Chinese and Western,” The Stanford Encyclopedia of Philosophy (Fall 2005 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2005/entries/comparphil-chiwes/. 
• Wujastyk, Dominik. The Roots of Ayurveda. London: Penguin, 2003.
• Zhang, Yanhua. Transforming Emotions with Chinese Medicine: An Ethnographic Account from Contemporary China. Albany, NY: State University of New York Press, 2007.
• Ziman, John. Real Science: What It Is, What It Means. Cambridge, UK: Cambridge University Press, 2000.
• Zysk, Kenneth G. Religious Medicine: The History and Evolution of Indian Medicine. New Brunswick, NJ: Transaction, 1993.
• Zysk, Kenneth G. Asceticism and Healing in Ancient India: Medicine in the Buddhist Monastery. Delhi: Motilal Banarsidass, 1998.
• Zysk, Kenneth G. Medicine in the Veda: Religious Healing in the Veda. Delhi: Motilal Banarsidass, 2nd ed., 1998.

The War on the Indigent with the Sword & Shield of Neoliberal Commodification

At the New APPS blog, John Protevi recalls

“a Dr. Who episode in which the cost of burying one’s relatives triggers a debt cycle leading to slavery. A parable of the Thatcherite takeover of the UK, it points to the Autonomia spin on the notion of ‘real subsumption,’ that is, the commodification of every social relation, even mourning. Which brings us to Monday’s Baton Rouge Advocate story, ‘East Baton Rouge Parish Coroner's Office to charge families for cremated remains.’

Families that turn over the bodies of loved ones to the East Baton Rouge Parish coroner for a pauper’s cremation will have to pay if they want the ashes returned. Coroner Dr. Beau Clark said his office will begin enforcing state laws that kick in when family members agree to a pauper’s burial, which means they sign over the rights of the body to the state because they cannot afford or refuse to pay funeral costs, Clark said....

Clark said he decided to begin enforcing the law after funeral homes approached him with a concern that people were choosing what they thought was a free cremation over paying a funeral home when families could afford funeral or cremation costs.

Three steps remain, but they won’t be long in coming: 1) billing the families whether they claim the ashes or not, 2) jailing those who can’t pay, and 3) placing them in Louisiana’s thriving private prison industry.”

This called to mind a sociological parallel courtesy of our criminal justice system, as I noted in my comment to John’s post:

The country’s social ethos under the regnant neoliberal ideology has darkened considerably, particularly from the perspective of someone like myself, who came of age during the (somewhat successful although it ended prematurely) “War on Poverty.” In many quarters a war on the indigent, especially the indigent accused or convicted of crimes is being conducted with the sword and shield of neoliberal commodification. I was astounded to learn recently that

“According to a report by the Brennan Center for Justice, states are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Pro Publica analyzed the report and noted that of the 15 states with the largest prison populations, 13 have provisions to charge defendants fees for exercising their right to counsel. In some of the states, the laws include mandates that specifically bar the court from waiving the fees, even for the poorest of defendants. And in Florida and Ohio, defendants must pay even if they are acquitted of the charges or have them dropped.”

For those not familiar with the sundry problems that continue to plague the constitutional right to counsel in our criminal justice system:

“The problem is that the fees arguably discourage individuals from exercising their constitutional right to an attorney. When defendants don’t exercise their right to public defenders, they frequently obtain the worst result possible. That’s the nature of an adversarial system. In additional, unrepresented defendants lead to wrongful convictions, over-incarceration and huge burdens on the courts, according to the report.”

This commodification seeps into every nook and cranny of the criminal justice system such that one is structurally predisposed to kick ‘em (alas, in not a few jurisdictions, literally and figuratively) while they’re down, as

“some of the fees don’t even end with the conclusion of the trial. Some states charge incarceration fees, prosecution reimbursement fees, probation fees, parole fees, drug testing fees. Naturally, most of the defendants don’t have the money to pay for any of this, and the fees continue to build over time. Making matters even more complex, in many states, when defendants don’t pay off their debts, they lose privileges, like voting and driving.” 

Madison & Marx at the Legal History Blog

At the Legal History Blog, Anders Walker makes some startling claims:

“Over the past few years, we’ve seen a series of books on equality in America, most lamenting the fact that the United States has grown increasingly unequal over the past few decades.  To take just a few examples, see Timothy Noah, The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It (New York: Bloomsbury, 2012), Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: Norton, 2012); and Glenn Greenwald, Equality and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful (New York: Macmillan, 2011). All of these texts seem to assume that inequality is and has always been considered a bad thing. Has it?  Gordon Wood makes the case in The Radicalism of the American Revolution that the founders endorsed a theory of equality ‘as no other nation has ever quite had it” precisely because they believed that no one “was really better than anyone else.’ (RAR, 234)  Yet, even Wood concedes that “[i]n embracing the idea of civic equality ... the revolutionaries had not intended to level their society.” (RAR, 233). No indeed. 

Take Federalist No. 10. Often read for its endorsement of a large national republic, the document also presented a vigorous defense of inequality, one that anticipated Marx by over half a century. Take this line, for example: ‘the most common and durable source of factions has been the various and unequal distribution of property … A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes.’ Isn’t that the basic premise of Marx’s 1848 Communist Manifesto? Yet, unlike Marx, Madison came to view the emergence of ‘different classes’ as a positive. ‘From the protection of different and unequal faculties,’ he observed, ‘the possession of different degrees and kinds of property immediately results,’ meaning that people with certain faculties, or talents, will be rewarded with certain amounts of property. More property will go to those with more faculties and, in Madison’s view, ‘[t]he protection of these faculties is the first object of government.’ Put simply, government’s role is to preserve inequality, precisely so that there will be innovation and incentive to work. This leads to a larger argument about the Virginia Plan and the ensuing Federal Constitution rather strive to end inequality, Madison’s Constitution aimed to preserve it, precisely to encourage the development of individual faculties, or talents, talents which would then be rewarded with property. What would Stiglitz, Greenwald, and Noah say to this?  Rather than a classless society, as Marx would propose, Madison seemed to envision a society of vast disparities in wealth, disparities protected by the Constitution.  Any call for ‘an equal division of property,’ argued Madison, even if pushed by an electoral majority, constituted a ‘wicked project.’”

Herewith my response:

The comparison between Marx and Madison is egregiously unavailing owing to a confusion and conflation of concepts and conceptions. First, as Jon Elster points out, Marx warned of any attempt to “define classes in terms of the kind or the amount of property owned.” Moreover, for Marx, the emergence of different classes in the sense of a class being “for itself” is in fact a “positive” insofar as it represents qualitative progress to the extent that that class is no longer simply “in itself, and even beyond the intermediate position (formulated by Elster) of a “class for others.” The class “for itself” has attained “class consciousness,” which is “not merely a matter of shared ideas and sentiments, but above all a capacity to overcome the free-rider problem in collective action.” So, Madison “did not in any way, shape or form “anticipate Marx” with regard to the latter’s concept (and conceptions) of class. Of course it is true that Marx could never countenance the rather naïve idea that differences in amounts or kinds of the possession of property accurately and fairly represent the meritricious distributive effects of individual differences in faculties and talents, however much individual properties will play a role in such possession, if only because he conceived “the central relations between classes [as involving] the transfer of surplus from below and the exercise of power from above.” And, given his ideas on the “good life” and “self-realization” (involving, for example, the ‘free actualization and externalization of the powers and abilities of the individual’), Marx would have dismissed if not laughed at the Social Darwinian notion and fashionable neoliberal idea (based on a troubling, if not always explicit, conception of human nature) that inequality is the primary cause necessary for “innovation and incentive to work.”

And whatever else the authors of the Federalist Papers or the Founding Fathers believed, I’m quite confident they did not envision the extent or depth—that is, the extreme sort—of inequality one finds in our country today. No one argues they believed in anything remotely close to “absolute equality,” they were, after all, Liberals of a kind. In other words, they did not envision economic liberalism of the neoliberal variety (a species of libertarian liberalism that differs in significant respects from its earlier laissez-faire incarnation) that prevails across our political spectrum, the sort of Liberalism that effectively undermines, not supports, political liberalism. They did not envision the sort of economic power wielded by large transnational corporations that operate in an global environment in a manner corrosive of the basic ability of national governments to effectively exercise sovereign control over their economies, in other words, to integrate the virtues of both economic and political liberalism, not simply the former at the expense of the latter. As John Dewey would remind us, these men did not foresee the enormous economic power of capitalist organizations on the order we witness in our world, be it the transnational corporations or the financial institutions that answer only to the logic and rules of capitalist imperatives as they understand and shape them. They managed to liberate us from the aristocratic control of society and the stranglehold of mercantilism, thus the problems that beset us today are not their problems, and they would, I believe, therefore be largely sympathetic if not supportive of our attempts to address the increasing inequality that plagues our society, an inequality such that libertarian economic liberalism makes mincemeat of political liberalism, rather than the two liberalisms working in a mutually fecund or complementary fashion. Indeed, even John Stuart Mill, a quintessential historical Liberal, was neither a laissez-faire nor a neoliberal capitalist, for reasons deserving of re-examination. No doubt his views on worker self-management in privately owned firms would today be dismissed as socialism or communism. Given the enormous and unprecedented power of capitalist financiers and firms, I can imagine at least several of the Founding Fathers coming to endorse what Rawls, a quintessential contemporary Liberal, called “liberal socialism” (the essential features of which he introduced in his posthumously published Lectures on the History of Political Philosophy, 2007) (Rawls cites John Roemer’s 1994 volume, Liberal Socialism, for elaboration of these features). 

Addendum:

It perhaps should also be noted that because Madison viewed the rights of property as “‘positive,’ that is, conventional and revocable” rather than “natural,” the opportunity, however difficult, to repeal laws and amend the constitutional order existed. We might, with Stephen Holmes in Passions and Constraint: On the Theory of Liberal Democracy (1995), look at Madison’s views in Federalist No. 10 as designed to assure the cooperation of property-owners in the new, and thus by definition “fragile system of collective rule.” Unlike, say, contemporary libertarians and neoliberals (who prefer to let free markets set the terms and conditions of social justice), Madison could be said to share Locke’s belief in the government regulation of private property (even if, as Liberals, they understood the markets of their time to be the most efficient method for redistribution of social wealth), which brings it out of the realm of pre-political, “natural,” or sacred rights (in the sense of belonging to some inviolable private sphere). Seen this way, the early Liberal views on private property “initiated a partial transfer of security from the old monopolists of land to other, less well-established, groups. What was ‘loosed’ onto the world, in fact, was not acquisitiveness but disrespect for inherited status.”

So, again, we might (counterfactually) imagine a Madison in the modern period not necessarily siding with that part of the Liberal tradition that “dogmatically opposed curtailments of property rights,” if only because he would be intelligent enough to appreciate “the insecurities and maldistributions that these rights, because unqualified, tended to generate in new circumstances.” Madison and his colleagues, we might imagine, would once again demonstrate the courageous if not experimental spirit of their Liberalism, by “agree[ing] to infringe some property rights, by establishing a progressive income tax system, for instance, for the greater and more justly distributed security” (Holmes). While this is part and parcel of the justification of the “welfare state” and does not amount to the “Liberal socialism” I mentioned above, nonetheless, and again, it seems to at least capture the historically progressive nature of the Founding Fathers’ Liberalism and preclude a more anachronistic reading of their political philosophy.

In keeping with the focus of Walker’s post, we can, once more with Holmes, ask ourselves, “Why did James Madison cling to the rights of private property with what now seems like monomaniacal zeal?”

“For one thing, private property was a symbol of security against the whims of political authority and the violence of rowdy neighbors, not to mention more impersonal forces. It was one of the few supports an individual could cling to in a sea of turbulence. As other sources of security, such as a more reliable legal system, became established, private property had to bear less of this burden and thus absorbed fewer of life’s uncertainties. Hence, it lost its former aura, its immunity to criticism. It even became visible as a source of insecurity itself.”

Classical Liberals endorsed the proposition that the subsistence needs of the poor could be satisfied by infringing, or better, curtailing, the private property rights of the rich. As a classical Liberal, I suspect Madison would have seen the wisdom of welfare-state liberalism that sets limits on the kind of inequality that leads to material insecurity and the failure to meet basic needs, a liberalism “based on the indubitable premise that the children of the poor have done nothing to merit their disadvantages in life” (Holmes). 

Katrina Pain Index 2012 - Seven Years After

 

 

1          Rank of New Orleans in fastest growing US cities between 2010 and 2011.  Source: Census Bureau.

1          Rank of New Orleans, Louisiana in world prison rate.  Louisiana imprisons more of its people, per head, than any of the other 50 states.  Louisiana rate is five times higher than Iran, 13 times higher than China and 20 times Germany.  In Louisiana, one in 86 adults is in prison.  In New Orleans, one in 14 black men is behind bars.  In New Orleans, one of every seven black men is in prison, on parole or on probation.  Source: Times-Picayune.

2          Rank of New Orleans in rate of homelessness among US cities.  Source: 2012 Report of National Alliance to End Homelessness.

2          Rank of New Orleans in highest income inequality for cities of over 10,000   Source: Census. 

3          Days a week the New Orleans daily paper, the Times-Picayune, will start publishing and delivering the paper this fall and switch to internet only on other days.  (See 44 below).  Source: The Times-Picayune.

10        Rate that New Orleans murders occur compared to US average.  According to FBI reports, the national average is 5 murders per 100,000.  The Louisiana average is 12 per 100,000.  The New Orleans reported 175 murders last year or 50 murders per 100,000 residents.  Source: WWL TV.

13        Rank of New Orleans in FBI overall crime rate rankings.  Source: Congressional Quarterly.

15        Number of police officer-involved shootings in New Orleans so far in 2012.  In all of 2011 there were 16.  Source: Independent Police Monitor.

21        Percent of all residential addresses in New Orleans that are abandoned or blighted.   There were 35,700 abandoned or blighted homes and empty lots in New Orleans (21% of all residential addresses), a reduction from 43,755 in 2010 (when it was 34% of all addresses).  Compare to Detroit (24%), Cleveland (19%), and Baltimore (14%).  Source: Greater New Orleans Community Data Center (GNOCDC).   

27        Percent of people in New Orleans live in poverty.  The national rate is 15%.  Among African American families the rate is 30% and for white families it is 8%.  Source: Corporation for Enterprise Development (CEFD) and Greater New Orleans Community Data Center (GNOCDC) Assets & Opportunity Profile: New Orleans (August 2012). 

33        Percent of low income mothers in New Orleans study who were still suffering Post Traumatic Stress symptoms five years after Katrina.  Source: Princeton University Study. 

34        Bus routes in New Orleans now.  There were 89 before Katrina. Source: RTA data.

37        Percent of New Orleans families that are “asset poor” or lack enough assets to survive for three months without income.  The rate is 50% for black households, 40% for Latino household, 24% for Asian household and 22% for white households.  Source: Corporation for Enterprise Development (CEFD) and Greater New Orleans Community Data Center (GNOCDC) Assets & Opportunity Profile: New Orleans (August 2012

40        Percent of poor adults in New Orleans region that work. One quarter of these people work full-time and still remain poor.  Source: GNOCDC. 

42        Percent of the children in New Orleans who live in poverty. The rate for black children is 65 percent compared to less than 1 percent for whites.  Source: Census. 

44        Rank of Louisiana among the 50 states in broadband internet access.  New Orleans has 40 to 60 percent access.  Source: The Lens.

60        Percent of New Orleans which is African American.  Before Katrina the number was 67.  Source: GNOCDC.

60        Percent of renters in New Orleans are paying more than 30 percent of their income on rent and utilities, up from 51 percent in 2004.  Source: GNOCDC. 

68        Percent of public school children in New Orleans who attend schools that pass state standards.  In 2003-2004 it was 28 percent.  Source: GNOCDC. 

75        Percent of public school students in New Orleans who are enrolled in charter schools.  Source: Wall Street Journal.    This is the highest percentage in the US by far, with District of Columbia coming in second at 39 percent.  Sources: Wall Street Journal and National Alliance for Public Charter Schools.

76        Number of homes rebuilt by Make It Right Foundation.  Source: New York Times. 

123,934           Fewer people in New Orleans now than in 2000.  The Census reported the 2011 population of New Orleans source as 360,740.  The 2000 population was 484,674.  Source: Census. 

Davida Finger co-authored this article.  Bill and Davida teach at Loyola University New Orleans College of Law.  A version of this article with complete sources is available.  The authors give special thanks to Allison Plyer of the Greater New Orleans Community Data Center.  You can reach Bill at [email protected]

Republicans, Big Government, and Hypocracy

Republicans are opposed to big government except: they favor virtually unrestrained power of police officers (some would call this a police state); they believe that the US is perfectly suited to police the world, to promote religion, and to regulate the morals of the people including the most intimate details of their private lives.

Government can do all this, but it is ill-suited to build bridges and roads, and the jobs of police, fire-fighters, and public school teachers should be cut. Curious, eh?

Capital Punishment: A Basic Bibliography

As a small tribute to Hugo Adam Bedau, who died this past Monday, I thought I’d post this basic bibliography on capital punishment. First, a few observations, followed by material from Professor Bedau’s obituary in The New York Times.

As Timothy Gorringe reminds us in his important book, God’s Just Vengeance (1996),[1] “Attitudes to crime and punishment in the West are, beyond argument, rooted deep in the Christian Scriptures [which of course includes the Hebrew Bible or ‘Tanakh’ of Judaism]. Here, alongside the ordinary punishments of criminal law, we find notions of expiation and atonement.” With regard to the retributivist justification of capital punishment, which is typically discussed in normative terms generated from the philosophical language of consequentialism and deontololgy, we also find presuppositions and assumptions of religious origin: “Retributivists, ancient and modern, have always been lured by one or another form of lex talionis, despite objections dating from post-biblical times to the present. Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form: Severity in punishment must be proportional to the gravity of the offense.”[2] In fact, as Gorringe explains,

“Only murder always involves the lex taliones. This crime can neither be commuted nor expiated. ‘You shall accept no ransom (kopher) for the life of a murderer. You shall not pollute the land in which you live; for blood pollutes the land, and no expiation can be made, for the land, for the blood that is shed in it, except by the blood of the one who shed it’ (Num. 35:33. A Similar sentiment is expressed in Deut. 32:43). In these texts guilt is understood as pollution, which therefore needs to be dealt with liturgically [cf. the ritual of capital punishment, which begins with the trial]—a notion which survived…even into the work of Kant.”[3]

The criminal justice system’s conception of punishment is an “an inherently retributive practice, whatever may be the further role of retribution as a (or the) justification or goal of punishment,”[4] and both that system and its forms of punishments have ancient, and in this case, disturbing pedigree:

“According to Eichrodt there was from a very early period an analogy drawn between the legal system and God’s activity as ‘Judge of all the earth.’ ‘It was in keeping with the living juristic element in the terms of the covenant …that men sought to elucidate Yahweh’s judicial activity by means of the fundamental principles of human retributive punishment. Above all, it was by applying the maxims of the talion that they tried to illustrate God’s irreproachable righteousness.’”[4]

As is plain, capital punishment is sodden with religious myths, symbols, and ideas, some of which have been given theological articulation since Anselm, only later to crystallize in Calvinism, thereby according them some semblance of intellectual respectability. Drawing on the seminal studies of René Girard,[5] we might view the criminal sentenced to capital punishment as the central figure in a “scapegoat ritual” of sorts, for Girard “illustrates the way in which the scapegoat is, as it were, the reverse side of expiation. If expiation is the voluntary addressing or bearing of guilt, scapegoating copes with it by loading guilt onto the other.”[6] Gorringe combines elements from Girard’s theory with G.H. Mead’s analysis of the public’s response to criminals, citing Mead’s Freudian-sounding argument that “the righteous indignation felt by the public is a sublimation of people’s self-assertive instincts and hostilities,” although I would replace “self-assertive” with “aggressive” and use “violent dispositions” in place of “hostilities.” In short, the aggressive instincts and violent dispositions of individuals are sublimated and projected—by way of the collective or the system of retributive criminal law in general and capital punishment in particular—onto the offender convicted of a capital offense, the death by execution a ritual atonement for both his sins and ours, an account which incorporates features of Durkheim’s understanding of crime as well, for we witness “its [putative] positive social effects in the reinforcement of solidarity, the release of collective emotion, and the symbolic display of collective sentiments. [….] The offender’s suffering, in other words, is a form of propitiatory offering.”[7] Gorringe is right to invoke both Durkheim and Girard, whatever their theoretical differences, but I think the latter enables us to see with pristine lucidity precisely how and why “‘expiation’ is an ideological rationalisation of collective violence, the attempt to give moral cover to an intrinsically immoral act.”[8]

Notes:

[1] Timothy Gorringe, God’s Just Vengeance (Cambridge, UK: Cambridge University Press, 1996).

[2] Bedau, Hugo Adam and Kelly, Erin, “Punishment,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2010/entries/punishment/.

[3] Gorringe, 43.

[4] Ibid.

[5] See Girard’s Violence and the Sacred. Patrick Gregory, tr. (Baltimore. MD: Johns Hopkins University Press, 1977), The Scapegoat. Yvonne Frecceru, tr. (Baltimore, MD: Johns Hopkins University Press, 1986), and Things Hidden since the Foundation of the World… (Stanford, CA: Stanford University Press, 1987).

[6] Gorringe, 45.

[7] Ibid., 56.

[8] Ibid.

*    *    *    *    *    *    *    *    *    *    *

“Hugo Bedau, Philosopher Who Opposed Death Penalty, Dies at 85,” The New York Times (August 16, 2012)

By William Yardley

“Hugo Bedau, a philosopher who preferred to wrestle with the knottiest of public policy issues rather than reason from the remove of academia — most notably in confronting capital punishment, which he opposed as immoral, unjust and ineffective — died on Monday in Norwood, Mass. He was 85.

The cause was complications of Parkinson’s disease, said his wife, Constance E. Putnam. Professor Bedau’s half-century career encompassed several cycles in the national debate over the death penalty: its decline and eventual rejection by the Supreme Court in 1972, its resurrection by the court later that decade, and its suspension in several states more recently. His most ambitious work, ‘The Death Penalty in America,’ revised several times, has been a standard text since it was first published in 1964.

Professor Bedau took up the issue as well in ‘The Case Against the Death Penalty,’ a pamphlet distributed widely for many years by the American Civil Liberties Union. Written with the help of Henry Schwarzschild, a former director of the group’s Capital Punishment Project, the publication brought together a number of arguments against the death penalty: that it failed to deter crime (using supporting data); that it was fraught with racial bias, wrongful convictions and excessive financial costs; and that it was ultimately an act of ‘barbarity.’

‘The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope,” the pamphlet said in a section titled “Unfairness.’ ‘Discretion, whether authorized by statutes or by their silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities and the despised, then discretion becomes injustice. Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.’ The essay, heavily footnoted, was less than 9,000 words long. Professor Bedau’s curriculum vitae was more than 13,000.

‘We called him the dean of death penalty scholarship,’ said Michael Radelet, a death penalty expert at the University of Colorado who began working with Professor Bedau in the 1980s. ‘Bedau was the first guy to put it all together and the first to make the general empirical argument against the death penalty — that is, a little race, a little deterrent, a little innocence.’ [….] 

Professor Bedau lectured at several universities but spent most of his career in the Boston area as an anchor of the philosophy department at Tufts beginning in 1966. Among the many awards he received was the Abolitionist Award, given in 1989 by the National Coalition to Abolish the Death Penalty. [….]

The full New York Times obituary is here

[A list of our bibliographies to date is found here. There is also a small list of forthcoming compilations.]

"Catholic group pledges support for gay marriage"

From The Tablet:  The International Catholic Newsweekly

Catholic group pledges support for gay marriage

17 August 2012

A group of prominent Catholics have given their public support to gay marriage in England and Wales.

In a letter to The Times, on Monday, 27 people - the majority theologians and clergy - said it is "perfectly proper for Catholics using their fully informed consciences" to support the Government's plan to introduce same-sex civil marriage, despite the opposition of the Catholic Bishops' Conference of England and Wales.

They explained: "Not all Catholics share their hierarchy's stated views against proposals to extend civil marriage to same- sex couples."

The group includes theologians Fr James Alison, Tina Beattie, Mary Grey, Fr Kevin Kelly and Gerard Loughlin.

The Catholic group's letter quotes the late Cardinal Basil Hume who wrote in 1997 that "love between two persons, whether of the same sex, or of a different sex is to be treasured and respected", and that these relationships "be afforded social recognition according to social justice principles."

The Virtue, Principles, and Pursuit of Justice: dialectical ascent out of, and dialectical descent back into, the Platonic Cave

…[T]he classical contention that justice is the ‘first virtue of societies’ (‘in society’ for Aristotle, ‘of institutions’ for Rawls) can be doubted. Culture, rootedness, and the respect of history are not behind it. Altruism and fraternity overrule it when they are possible. And the consciousness of the artificiality of the self, hence self-creation and nonalienated spirituality, constitute the highest and deepest stage of humankind. Justice therefore is only the fourth or fifth virtue of society. This does not make its establishment less necessary, the fight for it less righteous, and understanding it less important. Even the instrumental value of justice is no small contribution. Peace without justice is oppression, spoliation, and violation of dignity. Dignity without justice fosters wars for one’s due and freedom. Justice alone permits the reign of both peace and dignity.—Serge-Christophe Kolm

The following can be considered an extension of the ideas broached in the last paragraph of the introduction to our previous post on (a basic bibliography for) distributive justice. It is also an attempt to broadly characterize, and hint at the possible respective limits of, three influential approaches to distributive justice in our time. I rely on a recent blog post by Professor Michael Moreland to initiate the discussion.

At Mirror of Justice, Moreland writes:

“In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions—the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here’s a bit from the conclusion to Gardner’s paper:

‘Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes “social institutions” just cannot be tackled without first tackling the question of what would make you or me just. [….] And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law….’ [….]

[Finnis has] a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.”

While I think it’s very misleading if not a bit mean-spirited to claim or insinuate that Rawls himself “[thought] of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty,” the “mistake” committed by Rawls that Finnis is rightly said to avoid could likewise said to be avoided by others outside the Catholic tradition: earlier by Muslim thinkers and in our time (thus contemporaneous with Finnis), by an avowed Marxist philosopher, as we shall see. And while Rawls did not “begin” with human virtue, it enters his theory insofar as such virtue is conceived in the main as derivative of justice as a social virtue. In capitalist democratic (‘pluralist’) societies in which there is adherence to or at least identification with motley worldviews (or particular beliefs or values as aspects therefrom), beginning with virtue in publicly oriented reasoning about justice is complicated by the various understandings and clusters of virtues found in these religious and non-religious worldviews. While there is of course some overlap and agreement on particular virtues, some virtues may be central and others peripheral if not neglected. The ethos of capitalism complicates matters insofar as what were once vices are now virtues (Mandeville), in fact, we can probably find ready-made apologias for any of the so-called “seven deadly sins” in both popular and academic discourse. Moreover, it is hard to appreciate the logic or purpose of theories of justice that begin with questions addressed to each and every moral agent qua moral agent when the dominant social ethos and praxis is suffused with the predominance of or a default preference for utilitarianism or consequentialism, pragmatism, and materialist ideologies (e.g., scientism) among technocratic “cultural elites” in a manner congenial to if not supportive of the aristocracy of Capital at the expense of deference to the authority of the Good. The various reference groups into which we are socialized are fragmented and comparatively weak (and weaker still the traditional worldviews on which they depended), as the social psychological and ideological obstacles to deference to the Good are forged in the fires of capitalism and further shaped and polished by the consumptive goods (including entertainment and aesthetic pleasures) believed to promote happiness or welfare (in effect, the ultimate good). The result: passive consumption is the prevailing form of “self-realization.” Finnis’s natural law theory at least has the potential (alas, unrealized) to compensate for Liberalism’s failure to critique the ideology and praxis of turbo-capitalism and thus the role of the economic system in endogenous preference formation (leaving us with debilitating, distorted, or ‘dirty’ preferences) that makes a mockery of the Liberal’s idealized portrait of the sanctity and sovereignty of the individual’s preferences (desires and wants) and even some of the processes for their democratic aggregation and representation. But before Catholic legal theorists get too giddy over Finnis’s fidelity to the classical view of justice, we should hasten to add that this very (conservative) Catholic moral and legal theory often identifies the enemy as Liberalism as such, rather than its conflation or confusion with capitalism (which is a product of the Libertarian strand of Liberalism). The individual is, rightly, given moral (priority), political, and legal pride of place in Liberalism (hence communities exist for (Kantian or Millian) individuals, not vice versa, as often seems to be the case with ‘communitarianism’), and in a manner much like if not supportive of the metaphysical sanctity of the individual enshrined in the Catholic emphasis on human dignity (aspects of which go back to the Stoics and appear in the modern period anew with Kant, whose thinking was influenced by both the Stoics and his own Pietistic heritage).

It would be interesting to systematically compare the Catholic conception of justice from Aquinas to Finnis with notions justice in the Islamic tradition[1] (recalling Aquinas’s enormous debts to same), in particular its conceptions of “philosophical” and “ethical” justice, especially the latter, in which justice is also about each of us as individual moral agents. While it is true, in a profound sense—that is, theologically, metaphysically (or ontologically) and psychologically speaking—that such justice is accorded priority, in more practical terms it might not be helpful to think of it as “first and foremost” insofar as justice applies, from the outside looking in as it were (and thus not just from the subjective standpoint of the individual), simultaneously to the person and the polity to which he or she belongs. Muslims in turn are in debt to Aristotle (and in similar and other respects to Plato as well) insofar as they agreed with him that justice is “the greatest of virtues…and in it every virtue is comprehended,” although they believe the highest virtues are “implied in Revelation.” Most writers in the Islamic tradition have understandably attempted, as Majid Khadduri[2] points out, to correlate Divine and human justice. Khadduri also reminds us that “thinkers like Miskawayh and Rāzī”…. “made it clear that ethical justice was not merely a set of religious and legal duties but also moral obligations or dispositions toward good and evil, which men ought to undertake were he to pursue justice in accordance with an ethical standard.” With Abu Hāmid al-Ghazzālī we see theological, metaphysical, and ethical justice accorded priority insofar as the power of reason implanted in man by God is connected to a divine “light” (nūr) as a form of spiritual intuition (and thus with Platonic and neo-Platonic overtones) worked on by reason so as to guide man along the path of truth and justice. This divine intuition means, or is equivalent to, access to divine wisdom, which in turn is enshrined in traditional and spiritual virtues. So, while ethical justice “is an expression of ethical virtues…it is ultimately derived from divine justice.” As to the primary virtues, they reflect the influence of classical Greek philosophy, and thus include wisdom (while divine in origin, is much like the practical wisdom of Aristotle), courage, temperance, and justice (al-‘adl) itself, which is defined as “the whole of the virtues.”

The lamentably late G.A. (‘Jerry’) Cohen, a Marxist philosopher in the richest sense, has an interesting critique of Rawls’s theory of justice insofar as he argued that “principles that reflect facts reflect principles that don’t reflect facts” (I would call these ‘Platonic’ principles) and that Rawls failed to appreciate the fundamental importance of the last, that is, “fact-free principles,” described by Cohen as “meta-ethical” but which we might also fairly describe as metaphysical.[3] Rawls strove hard to avoid Kantian metaphysical principles or questions of metaphysical truth or moral realism (which he more or less did in his revisions to the original theory) that would have rescued his “constructivism” from charges of relativism (at least inasmuch as his concept of person(s) is the product of a particular culture and thus eschews the Kantian metaphysical conceptions of the liberty and equality of moral persons),[4] and perhaps precluded or prevented its characterization as an “implicitly statist” (rather than, as with Kant, ‘cosmopolitan’) moral and political philosophy. As Onora O’Neill has explained, the “Kantian constructivism” of the former work “identified the reasonable with the public reason of fellow citizens in a given, bounded, democratic society [i.e., like ‘ours’].”

Cohen argues that Rawls failed to appreciate the distinction between “fact-free principles” and “adopted rules of regulation” (the latter critically dependent in part on facts), and thus his constructivism is not a “meta-theory [or metaphysical, for that matter] theory of justice: Rawls “misidentifies the question ‘What is justice?’ with the question ‘What principles should we adopt to regulate our affairs?’” Muslim theologians and philosophers, as well as Aquinas and now Finnis, can likewise appreciate this misidentification. In effect, and in personal terms or from the view of the moral agent, it amounts to a failure to appreciate the deep difference between deliberating or contemplating what to do and thinking about what is the right rule (or what are the right rules) to adopt, between rules of regulation and the principles that justify them, or between optimal rules of social regulation and fundamental (normative) principles of justice, the latter having a far wider scope in practice than justice as a virtue of political institutions. The fundamental principles of justice, unlike the rules of regulation, could not in any real sense said to be “adopted,” for they “represent,” in Cohen’s words, “our convictions,” and these convictions of course are those of individual men and women (in which case, the fundamental principles of justice might depend, as Cohen concedes but does not agree, on basic facts of human nature, or simply a conception of human nature). Cohen, writes revealingly that he “agree[s] with the Socratic-Platonic view that led Socrates to reject illustrations of, for example, just behavior as providing a proper answer to the question ‘What is justice?’: no list of examples reveals what it is about the examples that makes each an example of justice,” or justice as such. The Humean concern with the “circumstances of justice,” ostensibly central to the Rawlsian view, asks “Under what circumstances [or conditions] is (the achievement of) justice possible and/or necessary?” As Cohen makes clear, the answer to the question “What is justice?” is prior to the Humean concern with the circumstances of justice, and that Hume himself understood justice, “in its primary application, [as] a virtue of persons,” not in the first instance as a virtue of the basic structure of society.

Cohen’s conceptual and Platonic-inspired critique of Rawls might be characterized as transcendentalist, demanding a utopian vision of the Good, as it were, although we should not forget the philosopher’s descending dialectic (as Iris Murdoch reminds us) back into the Platonic Cave, which suggests the “ideal” of justice has at least educative (as paideia), evaluational, and motivational relevance, even if the “Euclidian”or utopian constructions it inspires are not feasible models for definitely realizable concretions. As William Galston writes in Justice and the Human Good (1980), “utopias exist in speech; they are ‘cities of words.’ This does not mean that they cannot exist but only that they need not ever. This ‘counterfactuality’ of utopia in no way impedes its evaluative function.” Galston elaborates:

“Although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.”

Indeed, to mistake utopian constructions—of justice or anything else—for “definitely realizable concretions,” or as a political “program for action,” or as the “ends” toward which history is progressing (utopias misconstrued as ‘blueprints’), gives rise to the shadow of utopian thought and imagination, to the reasons behind our use of the term “utopianism” in a pejorative sense. George Santayana (Reason in Society, 1952) captured something of the true and indispensable nature of utopian constructions inspired by visions of the Good or even more modest Kantian or Kantian-like moral principles of freedom and equality:

“Ideal society belongs entire to this realm of kindly illusion, for it is the society of symbols. Whenever religion, art, or science presents us with an image or a formula, involving no matter how momentous a truth, there is something delusive in the representation. It needs translation into the detailed experience which it sums up in our own past or prophecies elsewhere. This eventual change in form, far from nullifying our knowledge, can alone legitimize it…. And yet there is another aspect to the matter. Symbols are presences, and they are those particularly congenial presences which we have inwardly invoked and cast in a form intelligible and familiar to human thinking. Their function is to give flat experience a rational perspective, translating the general flux into stable objects and making it representable in human discourse. They are therefore precious, not only for their representative or practical value, implying useful adjustments to the environing world, but even more, sometimes, for their immediate or aesthetic power, for their kinship to the spirit they enlighten and exercise.”

We might imagine a spectrum of theories of (largely distributive) justice in which Cohen’s “transcendentalist” conception and critique lies at one end, while Amartya Sen’s “social realization” (and ‘comparative’) approach lies at the other end, with what Sen terms Rawls’s “transcendental institutionalism” (of A Theory of Justice) falling out somewhere in the middle (there’s no implication here that the ‘middle way’ is the best approach).  Sen speaks of Rawls as being within a (niti) tradition of “arrangement-focused” contractarian thinking (the usual suspects) in contrast to what he terms a tradition of “realization-focused” comparisons (e.g., Smith, Condorcet, Wollstonecraft, Bentham, Marx, J.S. Mill), the former’s ex ante approach focused on designing and implementing “just institutions,” while the latter’s ex post (nyaya) orientation intent on comparative assessments of “just societies,” much in the manner of social choice theory. (Sen also highlights the different ‘informational’ foci of the respective approaches.) Thus Sen’s preferred approach “would tend to ground the assessment of combinations of social institutions and public behaviour patterns on the social consequences and realizations they yield….” (I will not here attempt a Cohen-like critique of Sen’s approach, merely and rather to note that one is certainly possible if not necessary.) The social realization approach would appear to give a greater role to, or at least has more confidence in, politics, at least in as much as that involves ongoing reliance on the rational basis of social judgments and public decisions, or accords a prominent role to practical reasoning in public fora, whatever our prior faith in or commitment to the putatively just institutions set up by the original “framers.” Nothing is sacred, in other words, even if we see these institutions as presumptively fair, for they remain liable to publicly reasoned re-examination (presumptions are rebuttable after all). Reasoned scrutiny, on this account, is equally ex ante and ex post, and thus is not the primary prerogative or privilege of the original framers or designers (say, of a constitution or any other convention in Russell Hardin’s sense), or those in an “Original Position,” that a would-be democratic society must pay debilitating deference to with regard to the pursuit of justice. I might add, somewhat ironically I suppose given Sen’s dislike of G.A. Cohen’s transcendental utopian conception of justice, that Sen’s approach permits (although he would not endorse this interpretation) ongoing respect of our intuitions of (perfect) justice insofar as we can always assess the degree to which our realizations fall short of the perfect “Form,” so to speak, there’s always room for an evaluative critique of sorts that precludes any kind of complacency with regard to our achievements.

Beyond or outside our spectrum of theories of distributive justice we should remind ourselves that justice may be neither the first virtue of societies nor of individuals. It is not necessarily the first virtue of society “because it presupposes and is embedded in cluster of other virtues and because it is only one of the several preconditions of social and political stability.”[5] And it may not be the first virtue of individuals, at least in thinkers as different as Marx and Gandhi, if only because it is perhaps best viewed as a “secondary virtue expressing and transcended in such others as mutual concern, moral solidarity, generosity and love.”[6]

Finally, we end with an equally compelling insight from the political theorist Ian Shapiro about the virtual neglect of the meaning and significance of “democratic justice:”

“It would be going too far to say that theoreticians of democracy and justice speak past one another, but there has been little systematic attention by political theorists to the ways in which considerations about democracy and justice are or should be mutually related. This relative inattention seems partly to have sprung from optimism among many justice theorists about what armchair reflections should be expected to deliver, a driving conviction about what is just in the distribution of social goods can be settled as a matter of speculative theory. Their arguments often appear to take it for granted that there is a correct answer to the question what principles of justice we ought to affirm; that Rawls, Ronald Dworkin, Robert Nozick, Amartya Sen, or someone else will eventually get it right [I should mention that Sen himself does not take this for granted]. On this understanding of the enterprise, tensions between proffered accounts of justice and the requirements of democratic politics can comfortably be thought of as problems of implementation to be worried about later or by others.”[7]  

Notes:

[1] I have a very basic introduction to justice in the Islamic tradition here: http://www.religiousleftlaw.com/2010/09/islam-justice-propaedeutic.html. 

[2] Majid Khadduri, The Islamic Conception of Justice (Baltimore, MD: Johns Hopkins University Press, 1984).

[3] See G.A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008): 229-343.

[4] See the Platonically-inspired critique in T.K. Seung’s Intuition and Construction: The Foundation of Normative Theory (New Haven, CT: Yale University Press, 1993). It remains an open question, I think, as to what extent Rawls’s theory is haunted by Liberal parochialism or possesses “cosmopolitan” features or potential. I broached this interpretive controversy here: http://ratiojuris.blogspot.com/2010/12/liberalism-keynesian-cold-war.html.  

[5] Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA: Harvard University Press, 2000): 85.

[6] Ibid., note 6: 349.

[7] Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999): 3-4. In a note to this passage, Shapiro writes that “Rawls is less responsible for the existence of this disjunction than are many of his successors. One of the least discussed features of his argument is the fact that the rights of democratic participation are protected by the first principles of justice. Given his lexical ranking, this supplies them with trumping power over many of the subsequent recommendations that flow from his theory, although rights of democratic participation may be substantially limited by other requirements of the first principle.”

It Takes a Village to Raise a Mass Murderer

Do violent video games play a role in the development of some mass killers? Speculation along these lines is common. Lance Liebl observes: “When violent tragedies like the Aurora, CO shooting that resulted in the death of 12 people happen, media — and often people who know nothing about video games — try to somehow tie in video games as the cause of the tragedy. We saw it with the Columbine shooting and the Virginia Tech shooting. So does it come as any surprise that Fox News is trying to report that the suspect, James Holmes, played World of Warcraft?” Liebl maintains that: “World of Warcraft is no more a contributing factor to James Holmes mental state and reason that he shot people than him once eating a Hot Pocket that burned his tongue. Or him watching the horrible programming on Fox News... which is probably a lot more responsible for any national tragedy.” See here.

Liebl might well be right. Not all correlation is causation. And most people who play violent video games do not become killers. Nonetheless, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the American Psychological Association, the American Medical Association, the American Academy of Family Physicians, and the American Psychiatric Association were not speaking purely out of their imagination in issuing statements deploring the developmental effects of violent video games on children. And the American Psychological Association and the American Academy of Pediatrics in separate statements have expressed that some of the effects on aggression are unique to interactive violent video games as opposed to the depiction of violence in other media. Consider, for example, the game of Manhunt in which: the “player sneaks around a 3-D environment and commits heinous acts of murder as a sadistic form of entertainment. Decapitation, steel-object-to-the-brain impaling and even the ability to jam a sickle up and unsuspecting victim’s ass” is part of the Manhunt experience. Another popular game called Postal calls on players to “burn people alive with gasoline or napalm; decapitate people with shovels and have dogs fetch their severed heads; beat police to death while they beg for mercy; kill bald unshaven men wearing pink dresses (in an ‘expansion pack’ called Fog Hunter); slaughter nude female zombies; urinate on people to make them vomit; and shoot players with a shotgun that has been silenced by ramming it into a cat’s anus.”

I am not surprised that in Columbine, Virginia Tech, and apparently Aurora, the killers were participants in, if not addicted to violent video games. We will never know if they were merely attracted to the games or if the games played a role in pushing them over the edge from fantasy to reality. Liedl is speaking purely out of his imagination when he claims to know. I do not believe that the most gruesome of these games are age appropriate for anyone. But it is obvious to me that the self-regulation of the industry is not working, that many of these games are not appropriate for young children, and that these games are so far removed from the core of the First Amendment that to say corporations have a right to sell these games to young children transforms a great principle into a piece of stubborn stupidity. Indeed, that is exactly what the Supreme Court did in Brown v. Entertainment Merchants Association.

It takes a village to raise a child. By permitting the sale of particularly gruesome violent video games to children, we have not only abdicated our responsibility to build a culture promoting positive social development, we have elevated that abdication into a constitutional principle.

 

 

Distributive Justice: A Basic Bibliography [revised: 8/14/12]

I thought our readers might be interested in this select bibliography on justice. There are of course several kinds of, and different ways of approaching, the subject of justice, and these kinds and approaches may in some respects be related to each other. We might speak, for example, of commutative justice (also ‘rectificatory’ or ‘corrective’: Aristotle and the Catholic tradition), retributive justice, restorative or reparative justice, transitional justice, local justice, intergenerational justice, procedural justice, legal justice, political justice, constitutional justice, ethical justice, economic justice, social justice, and theological or metaphysical justice. Most of the following titles fall largely within the category of distributive justice. For a fairly comprehensive bibliography on distributive justice (up to 2007), see this appended supplement to SEP’s entry on distributive justice. 

“The modern theory of justice…is at least as much economics as it is philosophy (which includes ethics), and it should logically occupy a very large part of economics. Economics, indeed, is the science of the allocation of scarce resources, where ‘scarce’ refers to human wants. It is concerned with both how this allocation is performed and how it should be performed. The second half of the topic is therefore a priori and logically half the discipline. This is normative economics. Since the reference is to agents’ desires or needs, the foundation and certainly the challenging part of normative economics is economic justice. Given the functions of politics and of the state, normative economics and economic justice have a large common ground with public economics, the economics of the public sector. Moreover, economic justice is not only a very large part of justice in society, it can also be seen as all of it, since desires, interests, conditions, and rivalries between them can be expressed in economic terms. Finally, the specific tools, concepts, methods, and analyses elaborated by economics have a prominent place in the modern theory of justice.”—Serge-Christophe Kolm

“Principles of distributive justice are normative principles designed to guide the allocation of the benefits and burdens of economic activity. [….] Distributive principles may vary in numerous dimensions. They can vary in what is subject to distribution (income, wealth, opportunities, jobs, welfare, utility, etc.); in the nature of the subjects of the distribution (natural persons, groups of persons, reference classes, etc.); and on what basis distribution should be made (equality, maximization, according to individual characteristics, according to free transactions, etc.).” (Julian Lamont and Christi Favor)

Fundamental distributive principles are typically egalitarian (in a strict form), welfarist (in a utilitarian or consequentialist sense), desert-based, libertarian, and, loosely, feminist. The “functionings and capabilities”approach to distributive justice questions elaborated differently in the works of Amartya Sen and Martha Nussbaum (respectively freedom- and human nature-based) could be said to combine elements of all but the aforementioned desert-based prinicples. Justice as a virtue, which includes but is not limited to virtue-ethical approaches to justice, focuses on the character and other traits and actions of the individual person and is sometimes linked to avowedly feminist principles or is feminist in inspiration, as evidenced in the concern with an ethics of trust or an ethics of care. Given the somewhat schizophrenic division one often finds in the modern world between an individualist ethics or morality confined to the private or intimate realm of close interpersonal relations and a more publicly oriented morality designed for public or collective conduct (in essence, a ‘doctrine of double moral standards’), the latter with its correspondingly less demanding ethical standards and requirements, most philosophical and economic treatments of distributive justice show a lack of concern with the notion of justice as a virtue, or when they do broach the topic, as with Rawls, “justice as an individual virtue is derivative from justice as a social virtue.” However, as Michael Sandel has noted in Justice: What is the Right Thing to Do? (2009), most of us intuitively if inchoately believe that justice is somehow bound up with or implicated in the promotion of virtue, and thus cannot be “neutral” or wholly agnostic when it comes to questions of the good life, of human flourishing in a classical eudaimonistic sense.

• Adler, Matthew D. Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis. New York: Oxford University Press, 2012.
• Alam, Shawkat, Natalie Klein, and Juliette Overland, eds. Globalisation and the Quest for Social and Environmental Justice: The Relevance of International Law in an Evolving World Order. New York: Routledge, 2010.
• Aristotle (translated by W.D. Ross, revised by Leslie Brown). Nicomachean Ethics. New York: Oxford University Press, 2009 ed.
• Bhala, Raj. Trade, Development and Social Justice. Durham, NC: Carolina Academic Press, 2003.
• Barry, Brian. Why Social Justice Matters. Malden, MA: Polity Press, 2005.
• Barry, Christian and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Social Justice. Malden, MA: Blackwell, 2005.
• Brighouse, Harry and Ingrid Robeyns, eds. Measuring Justice: Primary Goods and Capabilities. Cambridge, UK: Cambridge University Press, 2010.
• Brock, Gillian. Global Justice: A Cosmopolitan Account. New York: Oxford University Press, 2009.
• Brock, Gillian and Darrel Moellendorf, eds. Current Debates in Global Justice. Berlin: Springer, 2005.
• Brooks, Thom, ed. The Global Justice Reader. Malden, MA: Blackwell, 2008.
• Buchanan, Allen. Marx and Justice: The Radical Critique of Liberalism. Totowa, NJ: Rowman & Littlefield, 1984.
• Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• Caney, Simon. Justice beyond Borders: A Global Political Theory. New York: Oxford University Press, 2006.
• Carmody, Chi, Frank Garcia and John Linarelli, eds. Distributive Justice and International Economic Law. Cambridge, UK: Cambridge University Press, 2009.
• Chodosh, Hiram E. Global Justice Reform: A Comparative Methodology. New York: New York University Press, 2005.
• Cohen, G.A. Rescuing Justice and Equality. Cambridge, MA: Harvard University Press, 2008.
• Cohen, G.A. (Michael Otsuka, ed.) On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy. Princeton, NJ: Princeton University Press, 2011.
• Cohen, Joshua. The Arc of the Moral Universe and Other Essays. Cambridge, MA: Harvard University Press, 2010.
• Cramee, Olaf and Patrick Diamond, eds. Social Justice in the Global Age. Malden, MA: Polity Press, 2009.
• Daniels, Norman. Justice and Justification: Reflective Equilibrium in Theory and Practice. Cambridge, UK: Cambridge University Press, 1996.
• De Greiff, Pablo and Ciaran Cronin, eds. Global Justice and Transnational Politics. Cambridge, MA: MIT Press, 2001.
• Dowding, Keith, Robert E. Goodin, and Carole Pateman, eds. Justice and Democracy. Cambridge, UK: Cambridge University Press, 2004.
• Dworkin, Ronald. Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press, 2002.
• Elster, Jon. Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens. New York: Russell Sage Foundation, 1993.
• Finnis, John. Natural Law and Natural Rights. Oxford, UK: Clarendon Press, 1980.
• Fleischacker, Samuel. A Short History of Distributive Justice. Cambridge, MA: Harvard University Press, 2004.
• Fleurbaey, Marc. Fairness, Responsibility, and Welfare. New York: Oxford University Press, 2008.
• Follesdal, Andreas and Thomas Pogge, eds. Real World Justice: Grounds, Principles, Rights, and Social Institutions. Berlin: Springer, 2005.
• Foot, Rosemary, John Lewis Gaddis and Andrew Hurrell, eds. Order and Justice In International Relations. New York: Oxford University Press, 2003.
• Galston, William A. Justice and the Human Good. Chicago, IL: University of Chicago Press, 1980.
• Gilligan, Carol. In a Different Voice: Psychological Theory and Women's Development. Cambridge, MA: Harvard University Press, 1982 and (with a new preface) 1993.
• Goodin, Robert E. Utilitarianism as a Public Philosophy. Cambridge, UK: Cambridge University Press, 2005.
• Griffin, James. Well-Being: Its Meaning, Measurement and Moral Importance. New York: Oxford University Press, 1986.
• Hahnel, Robin. Economic Justice and Democracy: From Competition to Cooperation. New York: Routledge, 2005.
• Hoffman, Martin. Empathy and Moral Development: Implications for Caring and Justice. Cambridge, UK: Cambridge University Press, 2000.
• Jones, Charles. Global Justice: Defending Cosmopolitanism. New York: Oxford University Press, 1999.
• Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.
• Knight, Carl and Zofia Stemplowska, eds. Responsibility and Distributive Justice. New York: Oxford University Press, 2011.
• Kolm, Serge-Christophe. Modern Theories of Justice. Cambridge, MA: MIT Press, 1996.
• Kolm, Serge-Christophe. Justice and Equity. Cambridge, MA: MIT Press, 1997.
• Kolm, Serge-Christophe. Macrojustice: the political economy of fairness. New York: Cambridge University Press, 2005.
• Mandle, Jon. Global Justice. Cambridge, UK: Polity Press, 2006.
• Mehmet, Ozay. Global Governance, Economy and Law: Waiting for Justice. New York: Routledge, 2003.
• Miller, David. Principles of Social Justice. Cambridge, MA: Harvard University Press, 1999.
• Miller, David. National Responsibility and Global Justice. New York: Oxford University Press, 2008.
• Miller, Richard W. Globalizing Justice: The Ethics of Poverty and Power. New York: Oxford University Press, 2010.
• Moellendorf, Darrel. Cosmopolitan Justice. Boulder, CO: Westview Press, 2002.
• Nielsen, Kai. Globalization and Justice. Amherst, NY: Humanity Books, 2003.
• Noddings, Nel. Caring: A Feminine Approach to Ethics and Moral Education. Berkeley, CA: University of California, 1984.
• Nozick, Robert. Anarchy, State and Utopia. New York: Basic Books, 1974.
• Nussbaum, Martha C. Sex and Social Justice. New York: Oxford University Press, 1999.
• Nussbaum, Martha C. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: Belknap Press of Harvard University Press, 2006.
• Okin, Susan Moller. Justice, Gender and the Family. New York: Basic Books, 1991.
• Olsaretti, Serena, ed. Desert and Justice. New York: Oxford University Press, 2003.
• Peffer, R.G. Marxism, Morality, and Social Justice. Princeton, NJ: Princeton University Press, 1990.
• Plato (R.E. Allen, trans.). Republic. New Haven, CT: Yale University Press, 2006.
• Pogge, Thomas W., ed. Global Justice. Malden, MA: Blackwell, 2001.
• Pogge, Thomas W. and Darrel Mollendorf, eds. Global Justice: Seminal Essays. New York, Paragon House, 2008.
• Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971.
• Rawls, John. The Law of Peoples. Cambridge, MA: Harvard University Press, 1999.
• Rawls, John (Erin Kelly, ed.). Justice as Fairness: A Restatement. Belknap Press of Harvard University Press, 2001.
• Rescher, Nicholas. Distributive Justice: A Constructive Critique of the Utilitarian Theory of Distribution. Indianapolis, IN: Bobbs-Merrill, 1966.
• Roemer, John E. Theories of Distributive Justice. Cambridge, MA: Harvard University Press, 1996.
• Sadurski, Wojciech. Giving Desert Its Due, 2 Vols. Dordrecht, Holland: D. Reidel, 1985.
• Sandel, Michael J. Liberalism and the Limits of Justice. Cambridge, UK: Cambridge University Press, 2nd ed., 1998.
• Sandel, Michael J. Justice: What’s the Right Thing to Do? New York: Farrar, Straus and Giroux, 2009.
• Scheffler, Samuel. Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought. New York: Oxford University Press, 2001.
• Sen, Amartya. The Idea of Justice. Cambridge, MA: Belknap Press of Harvard University Press, 2009.
• Sher, George. Desert. Princeton, NJ: Princeton University Press, 1987.
• Shrader-Frechette, Kristin. Environmental Justice: Creating Equality, Reclaiming Democracy. New York: Oxford University Press, 2002.
• Shapiro, Ian. Democratic Justice. New Haven, CT: Yale University Press, 2009.
• Sunstein, Cass R. Free Markets and Social Justice. New York: Oxford University Press, 1997.
• Tan, Kok-Chor. Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism. Cambridge, UK: Cambridge University Press, 2004.
• Tan, Kok-Chor. Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality. Oxford, UK: Oxford University Press, 2012.
• Walzer, Michael. Spheres of Justice. New York: Basic Books, 1984.
• Young, Iris Marion. Responsibility for Justice. New York: Oxford University Press, 2011.
• Zucker, Ross. Democratic Distributive Justice. Cambridge, UK: Cambridge University Press, 2001.

Legislative Prayer

Missouri votes tomorrow on a ballot resolution that will protect a right to pray in public. The utterly unfocused proposal is animated by a sense that Christians (who constitute 80% of the Missouri population) are victims. The resolution will easily pass and be challenged with tough sledding for many of its applications in court. Even more interesting to my mind is a prayer issue raised in Sussex County Delaware.

The legislature there has been starting its session with the Lord’s Prayer for more than 20 years. U.S. District Court Judge Leonard P. Stark has enjoined the practice on the ground that the practice endorses Christianity. In lieu of appeal, the legislature has offered the compromise of saying Psalm 23: “The Lord is my shepherd, I shall not want . . .”

Obviously, the Lord’s Prayer is an important part of the Christian tradition although its content is not explicitly Christian. Psalm 23 is a part of the Judeo-Christian tradition, and Marsh v. Chambers authorized legislative prayers that fit within that joint tradition. But the country has become significantly more pluralistic since the Chambers decision in 1983 (making the discrimination against Buddhist, Hindus, atheists, and agnostics more socially salient), and I would guess that Jews generally (not to mention many mainline Protestants) would be uncomfortable with legislative prayer of any kind. That could suggest the decision is vulnerable to attack. On the other hand, the Court has become far more conservative since 1983 and even less sensitive to the interests of religious minorities.  

To my mind, this makes the question of what the lawyers should settle for in Sussex County extremely interesting. The judge was insisting on a settlement by mid-July, but that apparently has not happened, and the clock is ticking.

I was interviewed about this a couple of weeks ago. Here’s a link. Shiffrin Discusses Public Prayer in Delaware
WDEL, Jul 13, 2012

 

 

The Commodification of Religion

On its Facebook page, the Buddhist Peace Fellowship posted the picture above with the following text:

“Buddhists are heading over to the Icon Shoes Facebook page to strenuously object to their manufacture of shoes depicting the Buddha. If this example of cultural appropriation and disrespect doesn’t fly with you, feel free to tell the designer why.” https://www.facebook.com/iconshoesandhandbags

Unfortunately, many of the comments left by (ostensible) Buddhists on the page reflect just the kind of angry or intemperate mind that Buddhist practices are designed to overcome. Be that as it may, I made the following comment in response (slightly edited from its first incarnation):

Sometimes members of a religion commodify aspects of their own tradition, like the marketing of faux nails symbolic of those used in the crucifixion of Jesus, or vulgarize teachings from their tradition by turning them into bumper sticker slogans or by misusing them for crass ideological propaganda in the political arena (‘crass’ insofar as they fail to make meaningful contributions to political debate or dialogue in public fora characterized by a plurality of religious and secular worldviews, and instead amount to intemperate and self-righteous expressions of one’s religious and political identity and beliefs in a  manner more in keeping with the uglier forms of conventional power politics that suggest nothing distinctive of a spiritual orientation and praxis).  On other occasions, those outside a religious worldview will express their ignorance of and disrespect for certain beliefs, features, or practices of a tradition in words or actions, and this expression may be deliberate (i.e., intentional), or unwitting (i.e., no manifest ill-will or harm intended). In the case at hand, it seems Icon Shoes has done the latter, producing women’s shoes adorned with religious iconography of the Buddha, in this instance, depicting the bhumisparśa mūdrā (‘touching the earth’ gesture, or ‘calling the earth to witness’ gesture), associated with Siddhartha’s awakening or enlightenment experience.

 

Buddhist iconography performs various ritualistic, doctrinal, and spiritual functions and purposes that accord it a prominent religious role in all Buddhist schools, one not far from the use of icons in the Orthodox Catholic (or ‘Eastern’) Church. The religious meaning of the sundry iconographic representations and symbols are meant to resonate with the practitioner’s psychological, philosophical, and spiritual dispositions and further develop her capacities, which should widen and deepen over time. This iconography is an integral feature of a “living tradition” and not merely “art” in the conventional sense nor solely of historical or antiquarian interest or curiosity.

While in today’s world, personal identification with a religious tradition or community is sometimes faddish or fashionable, a perverse by-product or spillover effect of the role of celebrities and celebrity worship or emulation of the rich and famous (think of the celebrities associated with the Kabbalah Center), this does not amount to an excuse for a socially responsible corporate entity to employ religious iconography so as to fuel consumer fashion or as a vehicle of capitalist marketing in a manner clearly offensive to many Buddhists because disrespectful of their spiritual beliefs and practices. Such disrespect is of course not illegal, nor in any obvious way immoral, and yet there are any number of things we should not do, for reasons of civility, etiquette, good sense, and so on, that are not legally or morally proscribed. Put differently, there is no excuse in this instance, no (good) reason as it were, for this profane commodification of a religious icon. I would hope the powers-that-be at Icon Shoes come to their good senses and exercise discerning judgment and corporate goodwill befitting a would-be socially responsible corporate entity and thus cease production and distribution of an item, a woman’s shoe, that has no redeeming monetary (instrumental) or non-monetary (inherent or intrinsic) value. 

Health and Social Justice: The Inexcusably Elusive Pursuit of Welfare & Well-Being

Unemployed handyman Napoleon Leonard stands in front of the shed where he keeps his belongings at the spot where his house once stood before it was destroyed by fire May 6, 2009 in Marks, Mississippi.

At the HealthLawProf Blog, David Orentlicher draws our attention to a New York Times Sunday Magazine piece that

“provide[s] a profound reminder about the disparities in health and health care in the U.S. While many Americans may have access to the best health care in the world, that is not the case for the rural poor in Mississippi. And giving them access to care is only a small part of the solution. The health care system does little to address the causes of illness that bring the rural poor to the hospital.”

As the author Suzy Hansen writes,

“Mississippi has some of the worst health statistics in the country. A Mississippi black man’s life expectancy is lower than the average American’s life expectancy was in 1960. Sixty-nine percent of adult Mississippians are obese or overweight, and a quarter of the state’s households don’t have access to decent, healthful food. Adequate grocery stores can be 30 miles away. In one of the country’s most fertile regions, people sometimes have to shop for their groceries at the gas station. Consequently, Mississippians are dying from diabetes, hypertension, congestive heart failure and asthma. Shirley points out that in the 1960s people starved, and today they die from food.”

While Professor Orentlicher highlights an important generalization made by Hansen, namely, that “American health care is not preventive, and it’s not a system,” there’s an even wider lesson we might learn from such data, one that’s been around for some time now but has been obscured by the debate, constitutional and otherwise, over the The Patient Protection and Affordable Care Act (PPACA). That lesson is brought home within the framework of “health justice” or the endeavor to understand the relations between justice, health, and health policy, an endeavor that takes us considerably beyond the current focus (however important) on health care as such. This enlarged view, if you will, raises in the first instance questions concerning the “social determinants of health,” defined in the singular as a “socially controllable factor outside the traditional health care system that is an independent partial cause of an individual’s health status. Candidate examples include income, education, occupational rank, and social class” (Gopal Sreenivasan). In the words from a collaborative article by Norman Daniels, Bruce P. Kennedy, and Ichiro Kawachi:

“We have known for over 150 years that an individual’s life and death are patterned according to social class: the more affluent and better educated people are, the longer and healthier their lives. These patterns persist—even when there is universal access to health care—a finding quite surprising to those who think financial access to medical services is the primary determinant of health status. In fact, recent cross-national evidence suggests that the greater the degree of socio-economic inequality that exists within a society, the steeper the gradient of health inequality. As a result, middle-income groups in a more unequal society will have worse health than comparable or even poorer groups in a society with greater equality. Of course, we cannot infer causation from correlation, but there are plausible hypotheses about pathways which link social inequalities to health and, even if more work needs to be done to clarify the exact mechanisms, it is not unreasonable to talk here about the social ‘determinants’ of health. Justice requires that we ask whether these social determinants of health are fairly distributed, and where they are not, that we take steps to address these sources of inequality.”

With some notable exceptions, and these owing to attempts to make sense of the current global economic crisis of neoliberal turbocapitalism, we should not expect our politicians, policy makers, pundits, let alone the hoi polloi, to vigorously and frankly confront questions of race and class, social determinants, equality/inequality, and distributive justice, especially as they relate to each other in a systematic manner or as parts of a complex web of socio-economic causality. In the introduction to his book, Just Health: Meeting Health Needs Fairly (2008), Norman Daniels argues the

“broad determinants of health and its distribution in a population include income and wealth, education, political participation, the distribution of rights and powers, and opportunity. These are quite centrally the goods that any general theory of social justice is concerned about. We cannot achieve effective promotion of health in a society as well as its fair distribution without a just distribution of these other goods.” To answer the question, “When is a health inequality unjust?,” Daniels relies on Rawls’s “justice as fairness” conception together with “key results from the social epidemiology literature.”

These “broad determinants” operate in large measure through social institutions which, Thomas Pogge explains,

“can substantially contribute to the incidence of medical conditions. Of these, economic institutions—the basic rules governing ownership, production, use, and exchange of natural resources, goods, and services—have the greatest impact on health. This impact is mediated, for the most part, through poverty. By avoidably producing severe poverty, economic institutions substantially contribute to the incidence of many medical conditions. Persons materially involved in upholding such institutions are then materially involved in the causation of such medical conditions.”

References and Further Reading:

• Anand, Sudhir, Fabienne Peter, and Amartya Sen, eds. Public Health, Ethics, and Equity. New York: Oxford University Press, 2004.
• Asada, Yukiko. Health Inequality: Morality and Measurement. Toronto: University of Toronto Press, 2007.
• Bartley, Mel. Health Inequality: An Introduction to Theories, Concepts and Methods. Cambridge, UK: Polity Press, 2004.
• Bhopal, Raj S. Ethnicity, Race, and Health in Multicultural Societies: Foundations for Better Epidemiology, Public Health, and Health Care. New York: Oxford University Press, 2007.
• Buchanan, Allen. Justice and Health Care: Selected Essays. New York: Oxford University Press, 2009. 
• Daniels, Norman. Just Health Care. New York: Oxford University Press, 1985.
• Daniels, Norman. Just Health: Meeting Health Needs Fairly. Cambridge, UK: Cambridge University Press, 2008.
• Daniels, Norman, Donald W. Light, and Ronald L. Caplan. Benchmarks of Fairness for Health Care Reform. New York: Oxford University Press, 1996.
• Daniels, Norman, Bruce Kennedy, and Ichiro Kawachi. Is Inequality Bad for Our Health? Boston, MA: Beacon Press, 2000.
• Daniels, Norman and James E. Sabin. Setting Limits Fairly: Can We Learn to Share Medical Resources? New York: Oxford University Press, 2002.
• Danis, Marion, Carolyn Clancy, and Larry R. Churchill, eds. Ethical Dimensions of Health Policy. New York: Oxford University Press, 2003.
• Drèze, Jean and Amartya Sen. Hunger and Public Action. Oxford, UK: Clarendon Press, 1989.
• Drèze, Jean, Amartya Sen and Athar Hussain, eds. The Political Economy of Hunger. Oxford, UK: Clarendon Press, 1995.
• Farmer, Paul. Infections and Inequalities: The Modern Plagues. Berkeley, CA: University of California Press, 1999.
• Farmer, Paul. Pathologies of Power: Health, Human Rights, and the New War on the Poor. Berkeley, CA: University of California Press, 2003.
• Gostin, Lawrence O. Public Health Law: Power, Duty, Restraint. Berkeley, CA: University of California Press, 2000.
• Gostin, Lawrence O., ed. Public Health Law and Ethics: A Reader. Berkeley, CA: University of California Press, 2002.
• Kawachi, Ichiro, Bruce P. Kennedy, and Richard G. Wilkinson, eds. The Society and Population Health Reader: Income Inequality and Health. New York: The New Press, 1999.
• Kawachi, Ichiro and Lisa F. Berkman, eds. Neighborhoods and Health. New York: Oxford University Press, 2003.
• Kawachi, Ichiro and Bruce P. Kennedy. The Health of Nations: Why Inequality is Harmful to Your Health. New York: The New Press, 2006.
• Kawachi, Ichiro and Sarah Wamala, ed. Globalization and Health. New York: Oxford University Press, 2007.
• Kawachi, Ichiro, S.V. Subramanian, and Daniel Kim, eds. Social Capital and Health. New York: Springer, 2008.
• Marmot, Michael. Status Syndrome: How Social Standing Affects Our Health and Longevity. New York: Owl Books/Henry Holt, 2004.
• Marmot, Michael and Richard G. Wilkinson, eds. Social Determinants of Health. New York: Oxford University Press, 2nd ed., 2006.
• Navarro, Vicente, ed. The Political and Social Contexts of Health. Amityville, NY: Baywood, 2004.
• Navarro, Vicente, ed. Neoliberalism, Globalization and Inequalities:Consequences for Health and Quality of Life. Amityville, NY: Baywood, 2007.
• Navarro, Vicente and Carles Muntaner, eds. Political and Economic Determinants of Population Health and Well-Being. Amityville, NY: Baywood, 2004.
• Wicks, Elizabeth. Human Rights and Health Care. Portland, OR: Hart, 2007.
• Nussbaum, Martha C. and Amartya Sen, eds. The Quality of Life. New York: Oxford University Press, 1993.
• Sen, Amartya. Poverty and Famines: An Essay on Entitlement and Deprivation. New York: Oxford University Press, 1981.
• Wilkinson, Richard G. Unhealthy Societies: The Afflictions of Inequality. New York: Routledge, 1996.
• Wilkinson, Richard G. The Impact of Inequality: How to Make Sick Societies Healthier. New York: Routledge, 2005.