Equity and Social Justice: Rationalizing Unjust Enrichment

In past blog posts about the problems with racial politics in the current moment, among other things, I have focused on the quasi religious character of demands for reparations. In “A specter is haunting America—the specter of reparations” I write that “[r]eparations emanates from a mythological worldview, a religious cosmology, from fantastic precepts, where the primitive constructs of collective and intergenerational guilt and responsibility dwell.” In “Reparations and Blood Guilt,” I riff on Coleman Hughes observation that the huge wealth gap between Jews and Protestants not only hardly seems to interest anybody, but if a person were to interested in the wealth gap between Jews and Protestants, then he would surely be viewed with suspicion. I ask, rhetorically of course, “Is there not at least a whiff of antisemitism when a Protestant is interested in why Jews as a group do so much better than Protestants do as a group?” Then I suggest the reader translate that the black-white problem. In “For the Good of Your Soul: Tribal Stigma and the God of Reparations,” I credit John McWhorter with the observation that antiracism rests on the construct of original sin and then criticize Ta-Nehisi Coates for pushing reparations.

In today’s blog entry I want to examine those arguments that appeal to legal principles of obligation and unjust enrichment as a justification for affirmative action and reparations, arguments that promote positive discrimination as a method for disrupting presumed patterns of white supremacy. The shorthand for these arguments is the word “equity.” The word is popping up everywhere and I wish to turn it against the antiracists. According to the Oxford Dictionary, equity is the quality of being fair and impartial. What is fair is the rub, of course. But the way equity is used by the progressive left would certainly not suggest impartiality. Quite the opposite. Advantaging or disadvantaging people on the basis of race is hardly an impartial practice. It is, indeed, discriminatory. The Cambridge Dictionary defines equity as the situation in which everyone is treated fairly and equally. But, according to progressives, treating everybody equally leads to disparate outcomes. As Hayek argued in his 1960 The Constitution of Liberty, individual freedom is a great source of inequality. So progressives want us to instead demand and equality of outcome, which of course requires partiality. So we are back there again. Merriam-Webster defines equity as freedom from bias or favoritism. Freedom from bias or favoritism suggests equal treatment. Yet progressives support affirmative action which institutionalizes the practice of racial bias.

What I will show is that, in Ptolemaic fashion, progressive legal scholars and policymakers construct a logic purporting to show that the failure to act in a biased manner is a form of systemic bias. This is the source of the claim that past discrimination justifies present discrimination lest we reproduce past discrimination into the future. It is rooted in an assumption that group disparities are the result of racial injustices and that groups are responsible to other groups for disparities. It’s not even inequalities between individuals (which comes with problems), but inequalities between groups that needs fixing. In this essay, I explore a rationalization in the service of obtaining unjust enrichment for those imagined to be unjustly impoverished.

* * *

Three major species of justice have been identified in the literature. I briefly take each in turn. Retributive justice concerns the application and administration of punishment. Distributive justice concerns appropriateness in the apportionment of burdens and benefits, addressing questions such as whether all people are entitled to the same protections under the law or whether a system of production is fair in its distribution of work and profit. Corrective justice concerns righting wrongs (not in the retributive sense) and repairing breaches caused by past, present, or future action. An example of corrective justice is reparations. Affirmative action is another example (affirmative action is really a part of a larger reparations package blacks have been receiving since the 1960s). For thorough treatment on these species of justice, see John Rawls, A Theory of Justice, Brian Barry, Theories of Justice, and Michael Walzer, Spheres of Justice.

In one sense, justice, according to University of Oklahoma philosophy professor Edward Sankowski, writing for The Oxford Companion to Philosophy, “is identical with the ethics of who should receive benefits and burdens, good or bad things of many sorts, given that others might receive these things.” This is distributive justice. Its standard formulation in Western civilization is thus: “A liberal political conception of justice will ascribe to all citizens familiar individual rights and liberties, such as rights of free expression, liberty of conscience, and free choice of occupation.” This formulation, according to Sankowski, assumes “sufficient means to make use of their basic liberties,” to which, he notes, “excessive inequalities of wealth and power” stifle access. I agree, and, as I argued in the my last blog post, in “A Note on Desegregation and the Cold War,” the crisis of the moment is the disjunctive departure from the liberal civil rights model that finds the New Left, albeit appealing to the dialectic, utterly incapable on account of race obsession of seizing the opportunity to overcome the contradiction Sankowski identifies by establishing democratic socialism while retaining the liberal political conception of justice. For without this conception of justice, left politics becomes authoritarian and reactionary.

In Sankowski’s view, a broad conception of justice does not take questions of benefit and burden apart from the concrete relations that constitute them. Nor does a broad conception of justice limit itself to legal conceptions of justice. Many are therefore keen to adopt a broader sense of justice, what is called social justice, which questions whether social systems or aspects of them are fair and equitable, that is whether they are materially or substantively just. By these lights, social justice would involve the development of legal strategies and policy regimes that would enlarge the ability of everybody to enjoy the rights and liberties recognized in the law. This bridges the gap between distributive and corrective rights. I am a proponent of social justice defined in this fashion. However, the race identitarianism has something different in mind when he demands social justice.

The social justice argument generally is that public discussions of justice wrongly elevate formal justice principles over substantive justice concerns. This is as theoretically important as it is ethically meaningful to this standpoint. To compare, formal justice concerns equality and impartiality in the application of principles, such as rules or set criteria. One finds these concerns in procedural justice or standards discourse, such as discussions around due process. This form of justice does not require that the principle in question be just or fair, only that the principle or standard is equally applied. Substantive justice, on the other hand, concerns the fairness of the principle or standard. Here is the concern with equity, as well as the relationship between fairness and impartiality. The affirmative action problem rests on this dichotomy and the understanding of this relationship.

Consider two individuals, one black, one white, take an entrance exam to get into college. Formal justice principles obliges ignorance of their skin color in evaluating their applications. However, proponents of affirmative action contend, while it may be formally just to treat them equally in this regard, America’s legacy of racial separation makes it likely that equal treatment will advantage the white person, thus leading to an inequitable outcome. This would be an injustice. The practice of formal equality forgets history or ignores prevailing social structure by assuming a priori two approximately equal parties and then regarding differential treatment as “unfair.” Affirmative action is therefore justified as an intervention to achieve the goal of corrective justice.

Rally for the American Dream, Boson, October 14, 2018

We see this in the Harvard College case currently before the Supreme Court. Seven years ago, Students for Fair Admissions filed a lawsuit against Harvard College alleging that the school’s consideration of race in undergraduate admissions was discriminatory against Asian-Americans. The evidence for discrimination is that Harvard consistently scores Asian-American applicants lower on factors such as “personality traits.” Some Asian-Americans have reporting feeling compelled to act in bad faith by attempting to appeal “less Asian” on their applications. In defending Harvard College affirmative action practices, progressives have argued that, whereas Asian-Americans are only around six percent of the US population, they represent more than one in five students at Harvard. The normalization of discrimination based on presumed group membership and a judgment about appropriate promotional representation of racial groups is the very problem I am tackling in this essay.

But let’s stay with the pro-affirmative action position for a bit longer because I want to steel man my position. The injustice of regarding approximate equality has two problems, according to proponents. First, as Stanley Fish puts it in Affirmative Action: Social Justice of Reverse Discrimination, “The word ‘unfair’ is hardly an adequate description of [the black] experience, and the belated gift of ‘fairness’ in the form of a resolution no longer to discriminate against them legally is hardly an adequate remedy for the deep disadvantages that the prior discrimination had produced.” Second, treating our hypothetical exam-takers equally will result in inequality because the advantages that the average white person enjoys—better schools, the appropriate cultural knowledge, and so forth—better equip whites as a group to perform well on college entrance exams. (Given the Harvard College case, one can substitute Asian-Americans for whites in the example. The point of limiting Asian-American enrollment in the school was to open space for black applicants.) Substantive justice therefore requires mechanisms that negate (systematic) white (or Asian-American) advantage. Race demagogues argue that, knowing this, insisting on the application of a formal equality principle reflects a desire to perpetuate white privilege. This is how opponents of affirmative action get the label of “racist.” Fear of being so labelled stifles criticism of the policy.

I will not argue in this essay that there is nothing to the problem of inequalities. Quite the contrary. The contradiction between formal and substantive justice is obvious in the political-economic machinery of capitalism and in the perpetuation of class differences. Because of the irreconcilable differences between political-legal equality and private property, the polity and the economy have been formally decoupled and are said to constitute independent spheres of activity. One finds this separation in the oft-articulated dichotomy of political versus civil society. It is a relatively easy task to demolish this political-legal construction on empirical and rational grounds by exposing the actual intrinsic relation between the two spheres and reducing the formal justice principle to its logical contradiction—that is that there is nothing unequal about inequality (this is Hayek’s point in The Constitution of Liberty). Indeed, strict adherence to formal justice requirement reproduces material injustice (for Hayek, this is proof of its goodness). Yet private property is enshrined in the US Bill of Rights alongside the other rights. The contradiction is skirted via the ideological and legal decoupling of the spheres. One of Marx’s main objectives in his work was to show how the political-legal and ideological superstructure produces a false consciousness about the exploitative character of the capitalist mode of production.

Such a decoupling is said to be manifest in the domain of race relations with the passage of the 1964 Civil Rights Act. Before the law, it was legal in parts of the United States to discriminate against individuals on the basis of race. Formal principles, such as equal and unhindered access to vote, the ability to bear witness in a criminal or civil trial, and access to educational institutions, even use of the same facilities, were all constrained or prohibited by the law. While passage of the law approximated formal racial equality, expressed in the liberal principle of “equality of opportunity,” the law had limited impact in reducing the level of material inequity in the United States. Centuries of racial economy had produced stubborn disparities between groups organized by race. Therefore, colorblind principles functioned to reproduce racial disparities in a (de facto) manner similar to the way equal treatment in class relations functions to reproduce economic disparities. Given that racial disparities include economic disparities, the argument can feign a degree of materiality.

Since US legal philosophy generally does not define racial discrimination in group terms (nor should it), the Civil Rights Act did not direct the dismantling of de facto racial segregation (and it is difficult to imagine how society would go about doing such a thing), only the abolition of laws requiring it (the de jure system of Jim Crow). In some of its features, the racial order entrenched. Richard Thompson Ford, in his excellent Harvard Law Review article, “The Boundaries of Race: Political Geography in Legal Analysis,” provides one of the more lucid explanations for how racial inequality is reproduced in the absence of de jure segregation. And Douglas Massey and Nancy Denton, in American Apartheid, show that, despite the Fair Housing Act of 1968, segregation continues today, in some urban areas to a degree they describe as “hypersegregation.” For this reason, according to critical race thinking, the current body of race-neutral policy, cloaked in colorblind rhetoric and formal justice principles, is in fact a racist program, one that can be detected in institutional practices and government policies. All this is masked by colorblindness. Neil Gotanda, in his 1991 Stanford Law Review article “A Critique of ‘Our Constitution is Color-Blind’,” writes that “the U.S. Supreme Court’s use of color-blind constitutionalism—a collection of legal themes functioning as a racial ideology — fosters white racial domination.” (See also Alan David Freeman’s 1978 “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine,” published in the Minnesota Law Review.)

Central to concerns of substantive justice is the legal concept of unjust enrichment, which is tied to the problem cumulative advantages and disadvantages along racial lines, one remedy for which is reparations. The principle of reparations, along with its sister restitution, grew out of a long standing principle in jurisprudence, part of the body of the law of obligation (see David Ibbetson, A Historical Introduction to the Law of Obligations). Several progressive scholars have explored this as it is expressed in a racist society and the obligations of those who have benefited from racism. (See, for example, Ian Ayers and Frederick E. Vars’ 1988 “When Does Private Discrimination Justice Public Affirmative Action?” Columbia Law Review, Theodore Cross’s 1984 The Black Power Imperative: Racial Inequality and the politics of Nonviolence, Richard Delgado 1996 The Coming Race War?, and Patricia Williams’ 1991 The Alchemy of Race and Rights. See also Dagan Hanokh’s 1997 Unjust Enrichment: A Study of Private Law and Public Values, István Vásárhelyi’s 1964 Restitution in International Law, Graham Virgo’s 1999 The Principles of the Law of Restitution, and Mari Matsuda’s “Looking to the Bottom: Critical Legal Studies and Reparations,” in Harvard Civil Liberties-Civil Rights Review).

While I understand the material contradiction that underpins class inequality, I have failed to show that racial categories exist on the same ontological plane (and this is not for lack of trying). Bourgeoisie and proletariat exist in objective relation to the means of production; their class categories root in material relations. Racial categories have no materiality in themselves. They are, as Barbara Fields keeps telling us, ideological. For this reason, (real) Marxists argue that the ideology and practice of racism harms all working people and that class unity depends on dismantling racism and abolishing its categories and liberating the individuals so defined by them from them (in much the same way that abolishing religion liberates individuals from religious categories). If white workers ever benefitted from racism it was only relatively and presently only in the realm of statistical abstraction. There are, after all, concretely more poor whites than poor blacks (about three times more, in fact). Yes, as a group, whites enjoy higher wages, nicer neighborhoods, better schools compared to blacks, but, again, these advantages are only as a group, i.e., in the abstract. It is not true for every white person. Not even close. (And the argument that skin color gives whites a psychological advantage over non-white groups has no bearing on the material circumstances, so we can dispense with that bit of rhetoric.)

The critical theory persuasion is keen on the problem of power. So am I. “Neutral principles are always an attempt to create a formal relationship that leaves out the power element in the real relationships,” argues critical legal scholar Morton J. Horwitz, in a 1997 interview with Kim Ann Savelson. “The Supreme Court established freedom of contract as the basis for interpreting the Fourteenth Amendment on the notion that to look at the actual economic power or coercive power of one or the other parties was not neutral. Neutrality required that you eliminate the power element and think of it only in terms of a formal relationship.” But what power? From where? There is certainly something to this in the realm of political economy, but Horwitz is claiming that colorblindness “has the same intellectual function that neutrality had in terms of economic power.” The analogy doesn’t hold up under scrutiny.

“Color blindness wishes to eliminate the history of power relations between the races, and assess how we feel about any particular policy, as if today can be a starting point, without looking at how we got here today. As if we don’t talk about the inequalities of entitlements that are given to one or another race, because to do so would be noncolor blind,” Horwitz contends. “It seems to be quite the opposite, that unless you look at the history of how you got to the particular starting point today, you can’t begin to assess what is in truth a color-blind situation, a situation that eliminates the prior benefits, illicit benefits that people got on the basis of race.”

Horwitz is here referring to the problem of cumulative or inherited disadvantages. This is an explanation of grouped racial inequities. But the fact that other racial and ethnic groups that have suffered legal discrimination and institutional exclusion have nonetheless been able to overcome this past to become successful at the group level. The experience of Asian and Jewish Americans, to take the two obvious examples, suggests that this is not, even putting aside the problem of holding individuals accountable for group disparities, complete enough of an explanation to form a cogent basis for legal or policy formulations. To suggest Asian-Americans didn’t suffer terribly in United States history on account of racism is to ignore history. But they overcame all that as a group and are now so successful Harvard College has figured out a way to exclude them. And it is unclear whether the Supreme Court will stop them.

Horwitz’s argument only works logically if class relations and race relations exist on the same ontological plane. Whereas each worker stands in an objective relation to the means of production in such as way as to occupy a common social location with the same material interests, a situation that rests upon an exploitative relationship with members of the capitalist class, where value used by the latter is extracted from the former, individuals do not stand in relation to one another with respect to racial categories in this way. Imagine I can show that Protestants as a group earn higher wages than Catholics. You might ask whether Catholics are the victims of discrimination (or whether Protestants, with that ethic, are better workers), but you would have no basis for confusing religion with economics (and this is not to deny Weber’s thesis). Protestants and Catholics are categories of an ideological system we call religion. In the same way, whites and blacks are categories in an ideological system we call racism. Capitalism is not an ideological system. Like an ecosystem, Capitalism is a system comprised of objective relations that exist beyond consciousness. A man may be alienated from self and nature in a Feuerbachian manner, but he is not falsely consciousness of his religious doctrine. This he embraces, even if he doesn’t understand it. But that same man is very likely falsely conscious of the fact of his exploitation at the hands of the capitalist.

One way to detect the problem in all this is the flip the model of what cuts across what. There are black capitalists who exploit the labor of white workers. Millions of white workers toil in firms where black managers hire and promote them and organize their work. No white worker can challenge his black manager on the basis of race. No white solider can contradict or refuse the orders of the black soldier who outranks him. Race is simply not an authority relation in American institutions. Race gives whites no institutional power over blacks. That black capitalists and black managers derive their incomes from the work of white proletarians points to the absurdity of the claim of white privilege (many other things also point to the absurdity of this claim). Whites do not have a right to assert their race in social relations in the way capitalists have to assert their right to property. A black man may be kept out of the board room. He may not be kept out of the men’s bathroom. As I have pointed out on Freedom and Reason, property rights are an example of actual privilege (see “Systemic Classism: An Actual System of Privilege”). Racial privilege depend entirely on a law recognizing special rights. There is no such law privileging whites. White privilege is a myth.

To approach anything resembling class power, whites would have to organize around race in the way capitalists organize around property. Given that there is nothing intrinsically organic about race as a social grouping that would find it standing outside of intersubjective understanding (race is not physical, natural, nor material), power of this sort would require an legal infrastructure to maintain it. (Barbara Fields does a find job explaining this in a talk delivered March 2001.) And while there was such an infrastructure in the past, it was dismantled more than half century ago. Even with such a political and legal infrastructure in place, whites did not have common interests in their race in the way the capitalist does in his property. White privilege then was a bourgeois weapon to subdue white workers. A new weapon has long since been forged. The argument for reparations falls apart when one considers the absurdity of a white man owing a black man something merely on the basis of demographic identity. There is no material relation that makes this possible. I wonder whether the ethereal and therefore nonfalsifiable character of all this is what explains the persistence of this flawed type of thinking.

The flawed thinking I am describing here lies in treating as objective aggregates of individuals based on socially-selected characteristics and substituting the situation of the aggregate for the situation of the individual. There are two fallacies at work: the fallacy of misplaced concreteness, or reification, and the ecological fallacy. Race is not an actual thing like social class or biological sex. Race exists in the mind of racism. It does not stand apart from the ideology that invented it. To treat race as a real thing is to engage in reification. To be sure, acting on the basis of an idea as real can have real world consequences. In the case of race, it can involve discriminating against individuals based on their group identity. But we have all agreed this is wrong, at least in a certain direction. And that agreement is now the law of the land. However, against the principle of the law, affirmative action flips discrimination on its head, doubling down on the reification. The ecological fallacy is at work when supposing that every individual in an aggregate is identical to the statistical average, which is ever only an abstraction. The aforementioned fact of the great number of poor whites and a smaller but significant number of rich and powerful blacks tells us that we cannot substitute the abstraction for the concrete.

If an institution is designing practices that intentionally or purposively select individuals based on race or some other identity category, which necessarily excludes others on that same basis, rather than on their talents and accomplishments, then individuals are not being treated equally (or equitably, as it is defined) and discrimination is occurring. What progressives really mean by equity is positive discrimination, in this case discrimination based on race, and we have already determined that discrimination based on race is unjust. It’s one thing to accommodate an individual on the basis of a disability. Wheelchair ramps, for example, are about equal access. Or to recognize innate sex differences that put women at a disadvantage to men. Men cannot have babies and there is a certain liberty that comes with that. It’s another thing to decide that a qualified Asian-American is not fit for college because there are too many qualified Asian-Americans. The Asian-America is concretely an individual. Why is he being treated in terms of an abstraction? Why is racism acceptable in some instances and not in others? Shouldn’t it always be unacceptable?

* * *

I want to close with some remarks about standards. Affirmative action is a way to get around standards. But there is a movement afoot to change or do away with standards altogether. John McWhorter, writing for the Atlantic, argues in a recent Ideas column that “[b]y ending a requirement that classics majors learn Green or Latin, Princeton risks amplifying racism instead of curing it.” The title of the piece is instructive: “The Problem With Dropping Standards in the Name of Racial Equity.” I will have more to say about the rejection of standards in the face of failure (or, rationalized, for the sake of justice) in a later blog post, but I want to shorthand the problem here with a few notes about the problem of beauty.

The problem with beauty comes from a recognition that what a culture find attractive provides advantages for those who fit or come close to the beauty ideal. Those who do not fit the ideal are keenly aware of what affects some lives in a positive way negatively affects theirs. In other words, beauty, like intelligence and talent, is a type of hierarchy or inequality. One way of approaching a hierarchy is to work harder at trying to reach something approximating the cultural ideal. Culture provides many ways of accomplishing this. Another way to deal with falling short of the standard is to accept one’s lot in life. It’s not as if beauty ideals have been radically variable across time and space, so if one doesn’t want to work at it or can’t achieve it, he can always lower his expectations and suffer the pains of hierarchy. That’s the way it has been for much of human history. Yet another way is to demand culture change its ideals so that those who fall short of them don’t have to change anything about themselves or not have to feel bad about themselves. This is the pipe dream that everybody can be beautiful or that a society will come to an agreement that beauty should not matter.

The pipe dream is an uphill battle. But it is also not a very attractive one. It wears envy on its sleeve. And it’s unfair to others. A person who is beautiful, whether he comes by that naturally or through hard work, and it’s the same with intelligence and talent, doesn’t deserve to be diminished on account of it. Nor is the pipe dream impossible. Soviet-style brutalist architecture was not a society coming to an agreement that beauty shouldn’t matter but arrived there in any case. No pipe dream; it was a nightmare. A totalitarian situation in which the state decided what beauty was. And while corporations shape the standard in the West (albeit too thin), they have at least commodified some of the best cultural ideals (corporations remain destructive in other ways, however).

The critical theory version of equity lies behind the beauty resentment phenomenon—the smashing of standards. Resentment is a destructive force. Kurt Vonnegut’s Harrison Bergeron waits around the corner, just up ahead. We can choose a different path.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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