What is most interesting to me about this comment is that this “stronger and more principled reason” for taking coercion to be important to justice is not available to Rawls due to his emphasis on pure procedural justice, a disagreement between the two that Jon elaborated on above in the first comment. Since Rawls thinks of distributive justice as a matter of pure procedural justice, he does not have recourse to a state of affairs that can be described independently of the institutions through which it is brought about.

Instead, I think the justification of coercion in Rawls’ system must lie in the answer to the question of how free and equal persons can be free together. The right way to evaluate candidate coercive structures is by principles that would be chosen by free and equal persons, in their capacity as free and equal (and not due to their private interests). Then, this structure does not undermine freedom (as some think any coercion at all does), but rather implements conditions of equal freedom.

It is true that the main reason Rawls mentions for applying principles of justice solely to coercive institutions is that their effects are “profound and present from the start”. And Cohen is surely right that if that’s the only reason for focussing on the coercive institutions, then they same principles should apply to various non-coercive structures, choices and so on.

But maybe Rawls is wrong about the reasons for focussing on the coercive institutions – maybe there are other reasons for thinking that distinctive principles apply to them. For instance, most obviously, the fact that they are coercive, but presumably there are others (perhaps Julius’s ideas about “framing”.) For Cohen’s conclusion to go through, doesn’t he need to survey, and reject, all possible reasons for thinking that the coercive structure are distinctive? Or at least, all the plausible contenders?

[I haven’t finished the whole book yet, but this seemed like the chapter that raises the issue most fully, so if my concern is addressed elsewhere, I’ll be delighted to hear it, and I apologise.]

In the case of systematic gender discrimination within families, note that we are probably not dealing with the ideal situation involving reasonable and rational citizens. Insofar as they think gender rightly affects economic and political power, these persons are unreasonable: remember that all reasonable persons accept the conception of citizens as free and equal. So, we have the non-ideal case of dealing with unreasonable persons, and unreasonable comprehensive doctrines. Rawls says that in non-ideal cases like this, measures that are unjust in the ideal case can be justified.

What is important is the kind of justification that must be given: basic liberties can be limited only in order to better ensure and expand the basic liberties; fair equality of opportunity can be violated only in order to better establish fair equality of opportunity, and so on. So, for example, while affirmative action is strictly speaking unjust in the ideal case, it can be justified in historical and cultural conditions in which one group is systematically denied fair equality of opportunity, in order to move society towards this very ideal of fair equality of opportunity. Similarly in the gender case. However, as Rob in #9 says, how any particular couple decides amongst themselves to distribute the burden of domestic labor is not within the purview of the principles of basic social justice (this is, I think, the kind of thing that should also fall within Cohen’s “personal prerogative,” and I’m looking forward to his account of it).

I also want to emphasize Rawls’ (and others’, of course) insight that institutions can affect culture. Who we come to be depends greatly upon the background conditions we find ourselves in. While private citizens acting in association with each other managed to get civil rights legislation passed, this legislation has in turn had a profound effect on the overall culture of the United States (though to be sure much more must be done). We can discourage theft by paying a living wage; we can reduce sexual harassment with legal prohibitions, both because they make it known publicly that such behavior is unacceptable, and because it can help victims to feel empowered to fight back against it. I take it that this is the kind of thing Rawls is interested in when he considers the stability of the society well-ordered by a conception of justice. The question is whether citizens will over generations continue to accept and be motivated by the conception of justice given the embodiment of the conception in the basic structure, and this depends on how they and the public culture are affected by this basic structure itself.

The norms and the effects of the norms are two different things. Consider Cohen’s two feminist examples, of families favouring sons over daughters in the provision of higher education and of wives doing more domestic labour where both spouses work outside the home. What it is right to oppose, I think, is not these norms in the abstract, but these norms when they have effects which disrupt attempts to ensure the provision of the various goods Rawlsian principles of justice direct us to provide. If daughters are not unduly disadvantaged by their parents’ favouring of their brothers in the provision of higher education, then I don’t think we should worry about it (in the same way as about, say, the effects of the general outlines of tax law). Some children fall out with their parents and don’t get any support from them for higher education. Of course, this should not seriously impact on their ability to enter and succeed in higher education, but the tendency of children to fall out with their parents is not something political institutions should be attempting to regulate. Similarly, as long as when couples choose to distribute the domestic labour in certain ways, they are only choosing to distribute domestic labour in certain ways, then I don’t see why political institutions should concern themselves with that. The norm is not the problem; it is that its effects spill over into other areas – so that for example jobs get structured around the expectation of a partner who does the majority of the domestic labour. Legislation can prevent that spill-over, but absent the spill-over, it’s not clear that it is properly a concern of social justice.

Another way of putting this is to make precisely the Wilt Chamberlain point. Cohen and his epigones are walking slap-bang into having to confront Nozick’s critique of patterns, without the Rawlsian get-out of pointing out that whatever principles we might want to use to regulate contracts with no tomorrow, they’re not going to be the same as the principles we might want to use to regulate massive coercive systems extended both over time and territory.

But what if laws and policies have only very limited effects on these norms, and the real changes to undo the injust effects of acting on social norms must come from individual and groups and practices that fall outside the legitimate scope of government intervention? In that case both the causes and the sites of rectification are not institutions but rather non-institutional practices, and hence they would not fit in the Rawlsian framework.

“Except …. that this is a bit of a fix in Rawls, isn’t it? Because part of the identification of a just set of procedures is based on their statistical propensity to generate a distributive outcome that (inter alia) is to the greatest benefit of the least advantage”

The problem in a nutshell is that just distributions are ones generated by just institutions, but just institutions are defined in part by the distributions they generate, which seems circular. The problem disappears, however, if we distinguish between distributions across social positions and distributions across individuals. Institutions are just if, among other things, any inequalities between social positions raise the lowest position (as measured by situation of the typical fully cooperating member of that position). But looking at any particular distribution across individuals, one can’t say whether it is just without knowing what institutions generated it.

If it’s true that social and cultural norms reproduced in daily interactions largely independently of laws and institutions are very powerful in determining who will occupy what position, from one generation to the next, then that would look like a threat to equal opportunity. So if there is a prior principle of equal opportunity, we might be required to design our laws and policies to counteract these norms, in some way, even though the norms aren’t primarily generated by institutions. The Rawlsian schema can accommodate this possibility, I think, even if Rawls didn’t recognize the factual premise.

In “Anarchy, State, Utopia,” Nozick outlined a parable that went something like this: Pick your favorite theory of distributive justice and imagine that a society’s outputs are actually distributed in accordance with it. Now imagine that someone in that society is particularly good at playing basketball, and lots of people in that society like to watch well-played basketball, and are happy to each give the really good player $25 for the privlege of seeing him play. Afterward, everyone is happier but distributive justice is no longer satisfied, since resouces are no longer distributued according to the theory.

Nozick’s point was that justice should be judged on the basis of process, not outcome. Choen seems to approach the same Rawlsian fizzure from the other side, arguing that despite having all been made better-off, the people in the parable should all feel bad for having violated the egalitarian ethos of the ruling theory of distributing justice.

Cohen can be commended for his logical commitment. But to my petite bougeois mind, people who don’t shirk back from the practical application of such an idea are frightening, intellectual enablers of the kind of authoritarian utopian projects that so plagued us in the 20th century.