Race and Justice
[There are many topics that can be discussed under the heading of ‘Race and Justice’. Here I have to be very selective. For excellent writings on central questions that in some cases I do not cover or only touch on here, see the bibliography below, in particular the work of Du Bois, Fanon, Césaire, Boxill, Appiah, Mills, Shelby, Zack and Derby. For Black feminism see Hill Collins, Jones and hooks]
Introduction
Political philosophy does not have a good record when it comes to thinking about questions of race. In some cases the problem has been known but passed over in near silence by the philosophical mainstream; in other cases, the relevant texts have not, until recently, come to the notice of English speaking philosophers; and in others the discussion has been superficial and largely explained away.
I’ll take what I think are the most prominent examples of each of these issues. Hume’s Essays, Moral, Political and Literary, which contains some very widely read and studied essays, also includes ‘Of National Character’, in which can be found many unsupported generalisations and stereotypes, including remarks such as “I am apt to suspect the negroes to be naturally inferior to the whites. … In Jamaica, indeed, they talk of one negroe as a man of parts and learning; but it is likely he is admired for slender accomplishments, like a parrot, who speaks a few words plainly’ (Hume 1985, 208n).
To take the second case, Hume’s position was treated as an authority and repeated by Kant, who is regarded by some commentators as one of the founders of ‘scientific racism’, believing that there are significant and permanent differences between the races, which fall into a hierarchy. Kant goes as far as giving instructions on how best to beat slaves. These discussions appear in his little known (by philosophers) Anthropology and Geography, brought to the attention of English language philosophers primarily by Nigerian philosopher Emmanual Eze, though relatively neglected even so. Kant’s views on race have been discussed in detail by Bernasconi, Kleingeld, Hill and Boxill, and Mills, as well as others, and for many philosophers it is a great shock to find Kant has the views on race that he did.
Finally, to take the third case, John Stuart Mill, in the first chapter of his very prominent work On Liberty, John Stuart Mill notoriously declares that
It is, perhaps, hardly necessary to say that [the right to liberty] is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.
Many commentators on Mill pass over this passage with barely a comment. Others regard it, probably rightly, as somewhat more enlightened than Kant, who claimed that there are permanent differences between the races. Mill suggests that ‘barbarians’ share the same nature as the ‘more civilised’ and once educated will be able to reap the benefits of liberty, and also have things to teach the ‘civilised’. Until then, though, he says, they are unsuited to receive liberty, for their own good. Clearly there is much to be disputed in Mill’s view. For example, without mentioning Mill by name Jomo Kenyatta, writing as an anthropologist before he became the first prime minister of Kenya, argued that if people are to develop in the direction of civilisation, they need self-government rather than to be held in colonial subjection (Kenyatta 1962).
Does 20th century political philosophy fare any better than 19th century? The deliberate or casual use of explicitly racist statements has disappeared, but it is alleged that there is, instead, a highly problematic neglect of topics of race. Most prominently, Charles Mills points out that John Rawls barely mentions race anywhere in his many works, even though, arguably, racial injustice has for a long time been the most serious problem of injustice in the United States. This, in turn, leads to a much more substantive critique. I will return to Mills’ critique of Rawls later (and his dispute with Tommie Shelby on this issue) but first I need to introduce some preliminary considerations.
What is Race?
The notion of race is very familiar to us. We are used to thinking of different races. Kant divided human beings into four races: white, yellow, black and red. In 1942 the anthropologist Ashley Montagu, though highly critical of the idea that the concept of race has any scientific validity, also suggests that on the basis of physical appearance there are four main types of people (not the same as Kant’s), but he prefers to use the term ‘divisions’ rather than race. He also points out that there are sub-groups within each division, and fluid mixing across all divisions. Montagu cites Herder, a contemporary of Kant, as holding more or less the same view as Montagu’s on the fluidity and mixing of people such that the idea of ‘race’ cannot be substantiated, and the denial of any hierarchy of peoples (Montagu 1945, second edition). Montagu is one of many authors who argue that the modern concept of race didn’t exist until fairly recent times, and seems to have developed alongside the slave trade, as a justifying myth for slave owners and traders that enslaving black Africans was morally acceptable given a supposed natural hierarchy of races.
Yet if Montagu accepts that there are broad divisions, why is that not an admission that races exist? There are at least two reasons, probably many more. First, Montagu says that those who claim significance to the idea of race believe that it ‘represents a compound of physical, mental, personality and cultural traits which determines the behaviour of the individuals inheriting this alleged compound.’ (1945, p. 6) In this sense there are no races, for these compounds do not exist. Skin colour does not correlate with mental, personality and cultural traits in the way in which racial theory supposes. Montagu’s own division was based purely on physical appearance, and did not presuppose that physical appearance correlates in any significant way with other traits that form a ‘compound’. Furthermore, although Montagu accepted that there are general types, on the basis of physical appearance, mixing of types shows that the current division is contingent and reflects simply where we are now, rather than anything about the permanent condition of humankind. Montagu claims that racial theorists start from a conviction that distinct races exist, and look for evidence to confirm their dogma, rather than start from a dispassionate assessment of the evidence.
A second argument we can use to deepen the point that the substantive concept of race is highly problematic comes from Appiah, who points out that among the several common beliefs about race, we tend to think ‘you are the same race as your parents’ and ‘your skin colour determines your race’ But Appiah notes that children of the same parents – full brothers and sisters – can have significantly different skin colours, and hence the criteria push in different directions, rendering the ordinary concept problematic.
On the basis of these, and other more scientific, arguments, there seems to be a general agreement among biologists and geneticists that race is not a coherent biological category. In some sense, then, there are no races. Yet, racism still exists. How so? As Appiah argues, even though the biological category is in a sense empty, it is nevertheless an important social category. Hence Appiah argues that people do have a ‘racial identity’ even if they don’t strictly speaking have a race. Others talk about individuals being ‘racialised’ as white or black, and so on.
We can make an analogy between the distinction between biological sex and social gender here, where the idea that being a man or a woman is a biological category, acting in a masculine or a feminine manner is something that has to be learnt, and hence is a social construction that can and does vary between societies. The analogy is not so much between biological race (because there isn’t such a thing) and being racialized, but between having a particular skin colour and being cast into a particular social role. Strict racial theory, as we have seen, supposed there is a tight connection between how you look and how you will behave, or, at least, are expected to behave (what Montagu referred to as a ‘compound’). On reflection, though, it is clear that racially stereotypes roles are ‘socially constructed’ and, like gender roles, can vary from society to society. Here, for example, is the black American activist Malcolm X on the issue, after having met white Muslims in Mecca (Makkah).
Elijah Muhammad had taught us that the white man could not enter into Makkah in Arabia, and all of us who followed him, we believed it. And he said the reason he couldn’t enter was because he’s white and inherently evil, it’s impossible to change him. And the only thing that would change him is Islam, and he can’t accept Islam because by nature he’s evil. And therefore by not being able to accept Islam and become a Muslim, he could never enter Makkah. This is how he taught us, you know.
So when I got over there and went to Makkah and saw these people who were blond and blue-eyed and pale-skinned and all those things, I said, “Well!” But I watched them closely. And I noticed that though they were white, and they would call themselves white, there was a difference between them and the white one over here. And that basic difference was this: in Asia or the Arab world or in Africa, where the Muslims are, if you find one who says he’s white, all he’s doing is using an adjective to describe something that’s incidental about him, one of his incidental characteristics; so there’s nothing else to it, he’s just white.
But when you get the white man over here in America and he says he’s white, he means something else. You can listen to the sound of his voice — when he says he’s white, he means he’s a boss. That’s right. That’s what “white” means in this language. You know the expression, “free, white, and twenty-one.” He made that up. He’s letting you know all of them mean the same. “White” means free, boss. He’s up there. So that when he says he’s white he has a little different sound in his voice. I know you know what I’m talking about.
This was what I saw was missing in the Muslim world. If they said they were white, it was incidental. White, black, brown, red, yellow, doesn’t make any difference what color you are. So this was the religion that I had accepted and had gone there to get a better knowledge of it. (Malcom X 1965)
Racism and Institutional Racism
What is racism? Some cases are obvious, but others are more subtle, as Carmichael and Hamilton argue in their book Black Power:
Racism is both overt and covert. It takes two, closely related forms: individual whites acting against individual blacks, and acts by the total white community against the black community. We call these individual racism and institutional racism. The first consists of overt acts by individuals, which cause death, injury or the violent destruction of property. This type can be recorded by television cameras; it can frequently be observed in the process of commission. The second type is less overt, far more subtle, less identifiable in terms of specific individuals committing the acts. But it is no less destructive of human life. The second type originates in the operation of established and respected forces in the society, and thus receives far less public condemnation than the first type. When white terrorists bomb a black church and kill five black children, that is an act of individual racism, widely deplored by most segments of the society. But when in that same city – Birmingham, Alabama – five hundred black babies die each year because of the lack of proper food, shelter and medical facilities, and thousands more are destroyed and maimed physically, emotionally and intellectually because of conditions of poverty and discrimination in the black community, that is a function of institutional racism. When a black family moves into a home in a white neighborhood and is stoned, burned or routed out, they are victims of an overt act of individual racism which many people will condemn – at least in words. But it is institutional racism that keeps black people locked in dilapidated slum tenements, subject to the daily prey of exploitative slumlords, merchants, loan sharks and discriminatory real estate agents. The society either pretends it does not know of this latter situation, or is in fact incapable of doing anything meaningful about it. (Carmichael and Hamilton, 1967, p. 4)
It has been claimed that Carmichael and Hamilton were the first to use the idea of institutional racism in any systematic fashion. The term is now in general use. A test for whether an organisation suffers from institutional racism is what is necessary in order to remove racism when it is experienced. Consider, for example a situation where people are racially abused by the police. One possibility is that a handful of rogue individuals are responsible , and once they are fired or retrained the problem will disappear. But it is also possible that even if the individuals guilty of racism are removed, the problem will reappear. Other individuals will repeat the behaviour, as the behaviour is produced, encouraged or maintained by the institution. It then makes sense to talk about institutional racism, and deeper, structural or systematic problems need to be addressed.
One further comment. Sometimes policies that favour disadvantaged groups, such as affirmative action, are criticised on the grounds that they are racist, in that they favour one group over another. But for theorists such as Carmichael and Hamilton, this is a misconception. Racism, in their view, is related to power. It is a form of preferential treatment which is a consequence of, and an attempt to reinforce, the power of a privileged group. Hence although there can be reverse racial preference, there cannot be, on this understanding, be reverse racism.
From Rawls to Racial Justice
John Rawls’ A Theory of Justice was published in 1971, not many years after the passing of the Civil Rights Act (1964)), the assignation of Malcolm X in 1965 (just a week after the speech quoted above was given) the publication of Black Power by Carmichael and Hamilton (1967) and the assignation of Martin Luther King (1968). Hence issues of racial justice had reached a boiling point in American society. Yet Rawls is virtually silent on the topic of race. Can his work, nevertheless, help us think about the relation of race and justice?
John Rawls’s theory of justice was designed as an ‘ideal theory’, by which Rawls means that he intends it to be a theory to regulate a world in which there is close to full compliance with the theory. This is one of a number of simplifying assumptions under which the discussion in A Theory of Justice is developed. (Others include: there is no immigration or emigration; there is no ‘capital flight’ in response to high tax, everyone is within the normal health range.)
Another way in which the theory is ideal is that the methodology requires that principles are to be developed without knowledge of the contingencies of the society to which it is to apply: the principles of justice are to be decided behind ‘the veil of ignorance’ which excludes all facts about existing society, beyond some very general facts about economics and psychology which apply widely. Rawls argues that from behind the veil of ignorance, in the original position, the following theory would be chosen, or agreed to:
FIRST PRINCIPLE
Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. [The liberty principle.]
SECOND PRINCIPLE
Social and economic inequalities are to be arranged so that they are both:
(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and [The difference principle]
(b) attached to offices and positions open to all under conditions of fair equality of opportunity. [The fair opportunity principle] (Rawls 1999, 266-7)
These principles are set in an order of priority, in which the liberty principle takes priority over the others, and the fair opportunity principle takes priority over the difference principle, at least under normal conditions. They are not intended as principles for individual behaviour, but to regulate the basic structure of society, by which Rawls means the political constitution and its principal economic and social arrangements. The principles of justice are ‘the constitutional essentials’ which inspire and help generate the full constitution, laws and policies. There is no strict entailment between the principles of justice and particular laws and policies, but those laws and policies should be designed so that the basic structures exemplifies the principles.
The challenge for Rawlsians is how to apply the theory to the question of race. On the face of it, though, the principles appear to leave no room for any vestige of racism. The liberty principle, in distributing equal basic liberties, rules out individual and structural forms of discrimination such as differential legal, political and civil rights (for example voting restrictions). The fair opportunity principle provides the equal right not only to compete for jobs, but to receive the background support and training necessary to be qualified to apply. Finally, principle the difference principle contains nothing within it that would favour one group over another. Hence, Rawls’s principles would lead to a ‘race-blind’ political and economic system that would, it would seem, treat everyone as free and equal.
What, then, could be the problem? Mills concedes that if you were, impossibly, designing principles of justice for a society that had no history and was coming into existence now, Rawls’s principles would work in the fashion just described. The problem is, he says, that this is not our situation. If we take the United States, we start from a system of gross racial disparities and inequalities. In Rawls’s terms we are in the realm of non-ideal theory, and very deeply so. There are racial disparities in almost everything that could be relevant to justice, from access to the ballot box in some states, to prison sentencing, to discrimination in the workplace, to gross inequalities in income and wealth. Mills argues that in order to address such issues we need to make a distinction between distributive justice and corrective justice, or justice in rectification, to which I’ll return. The key question is how can we apply principles for ideal circumstances to the non-ideal circumstances of the real world?
It may be hard to see what exactly the problem is. Why not simply apply Rawls’ principles of justice, and thereby transform the unjust world into a just world? Clearly it would take a long time, and there would be entrenched opposition from the vested interests of the powerful people who benefit from injustice which could derail it entirely. But this is a general problem about implementing theories of justice and not one that arises only for Rawls. However, Mills sees a very specific problem. Suppose that we do, by some miracle, transform American society so that it now fully complies with Rawls’s principles of justice. Would it also have achieved racial justice? Clearly there could be no direct racial discrimination, for this would be ruled out by the liberty principle. And there would be fair equality of opportunity in employment, and again, therefore, no discrimination. And the worst of would be as well off as possible. But here lies the problem.
In the current circumstances in the USA, there are very significant racial disparities in income, and even more in wealth, with Blacks and Hispanic Whites having, on average, far lower income and wealth than non-Hispanic Whites. Hence Blacks and Hispanic Whites are very heavily represented among those who are at the bottom of the distribution. Suppose a range of policies changed so that those at the bottom had their income and wealth boosted. They would certainly be better off. But this on its own gives us no reason to think that the order of wealth will have changed, in terms of where people stand in relation to others. Perhaps the earnings and income gap will be reduced, but in fact we have no guarantee of this. It is quite possible that policies that improve the position of the worst off make the better off much better of too. But that is not the main point. Rather, even if the incomes of the poorest rise, they are likely still to be the poorest in society. Hence if we try to transform an existing unjust society by implementing Rawls theory of justice, it is possible that there could still remain very significant racial disparities in income and wealth. And if we regard such racial disparities as unjust, then we have to concede that even the perfect implementation of Rawls’ theory of justice is consistent with significant racial injustice (a parallel gender critique is also possible).
This is a surprise and very unwelcome from a Rawlsian point of view. What responses are possible? Here are four:
- Denial of the problem. A hard-line Rawlsian might argue that if the society meets the terms of Rawlsian principles of justice then it is just. But this is hard to sustain when patterns of racial disparity exist. And it is especially implausible when they can be explained by the historical legacy of racial injustice, as in this case.
- Problem self-correcting. It might be suggested that although the situation is unjust, over time it will be corrected without the need for special measures. The liberty principle and fair opportunity principle will encourage social mobility which, over a generation or two, will end injustice. There are at least two responses to this. First, it concedes that there remains injustice, if only in the short term. Why should that be acceptable? Second, the empirical claims are highly doubtful. Rawls himself points out that the existence of the family is, in practice, an obstacle to fair opportunity and there is little reason to think that its effects will disappear over time.
- The problem exists, but can be fixed by deploying resources that are already available within Rawls’s theory. This is the position taken by Tommie Shelby, to which I will return shortly.
- The problem exists and needs a radical solution which is a significant departure from Rawls’ theory. This is Mills’ own position, again to which I will return.
Shelby, Rawls and Race
Tommie Shelby has made a number of important contributions to the study of justice and race in relation to the work of John Rawls. One, which I will leave aside here, concerns the moral and political obligations of those who suffer from the severe racial injustice of an unjust basic structure: the people who Shelby describes as the ‘denizens of the dark ghetto’. Shelby argues that its victims of an unjust basic structure of society, behaviour that could be rightfully morally criticised in other circumstances, such as some forms of breaking the law, can become morally acceptable, for example as a justified response to injustice (Shelby 2016). He discusses a number of policy areas, such as housing, where he engages and disagrees with the work of Elizabeth Anderson on the importance of integration in housing. (Anderson 2011).
The main thing I want to discuss here, though, is Shelby’s response to the alleged inadequacy of Rawls’ theory of justice in dealing with racial injustice. Shelby’s solution is that the way to deal with the issue is to think more deeply about what is required by the principle of equality of opportunity.
While I am not sure what set of institutional reforms would be required to realize the principle of fair equality of opportunity in the United States, it seems clear that it would require, at a minimum, considerable redistribution of wealth, the expansion of educational and employment opportunities, and aggressive measures to address discrimination in employment, housing, and lending. My main point here, though, is that a basic structure that provided fair equality of opportunity for all citizens regardless of race would remove many of the socioeconomic burdens that racial minorities presently shoulder because of the history of racial injustice. Even though, as a member of an historically disadvantaged racial group, one could not be sure that one’s current degree of wealth or income is not lower than it would have been in the absence of our history of racial domination (perhaps this is in principle unknowable), one could be sure that one’s life prospects will be roughly the same as that of others similarly gifted and motivated regardless of the social position to which one has been born. (2004 1711)
Mills on Shelby on Rawls
Mills regards Shelby’s attempt to defend Rawls as unsuccessful. For Mills, very substantial compensatory policies are needed to redress the historic racial inequality in that would still remain even when Rawls’ principles are adopted, and this demand, he argues, is not satisfied by the interpretation of the implications of the opportunity principle offered by Shelby. Mills presents several objections.
The first objection is simply Rawls’s own silence on this matter. It is a common riposte to strategies such as Shelby’s to say ‘if that’s what Rawls had in mind, why didn’t he say so?’ That is a good question, but its force here can be questioned. Shelby is applying Rawls’s theory to an area that Rawls did not discuss explicitly. It seems strange to argue that such extension is illegitimate. Of course, it can be foolish. For example, many people constructed a ‘Rawlsian’ theory of global justice (based on a global difference principle) but when Rawls came to write about the topic he produced ideas that no-one anticipated. It is always risky to say what someone would have said on a topic they didn’t address. But Rawls died without writing on race and justice at length, and all we can do now is speculate. However, Mills does make the point that in Rawls’s writings there are several points where he could have endorsed the type of approach that Shelby suggests, but seems explicitly to shy away, suggesting that race needs a special treatment.
The main thrust of Mills’ reply, however, is the argument that Shelby has not paid enough attention on the distinction between ideal theory, as represented by the principles of justice, and corrective justice, which is part of non-ideal in that it attempts to address injustices. Rawls’s focus is almost entirely on ideal theory, whereas Mills argues that significant corrective justice is needed before ideal theory can apply. Shelby’s approach is, in effect, to try to combine the two by building corrective justice into the conditions under which fair equality of opportunity apply. What is wrong with this? Is it a question of mere terminology, or does it make a consequential difference? Mills argues that the terminology reflects a huge difference. On his own approach, it is necessary for society to acknowledge that a gross racial injustice has happened and is still happening, and there is moral imperative to undertake compensation or rectification as part of a process of repair.
Many theorists have argued that other measures, including symbolic ones, are crucial also. Truth and reconciliation commissions, acknowledgments of wrongdoing, apologies, genuine repentance, community repair, restoration of civic trust, have all been put forward as necessary elements for outstanding wrongs to be corrected (Mills 2017, 172)
On Shelby’s application of Rawls’s view, it seems that none of this will take place. There need be no official acknowledgement of the past, but rather a strong determination to take steps so that the situation is just from now on. Past injustice fades into history rather than being confronted.
Mills also questions whether massive redistribution, on the scale required by compensatory justice could be licenced by the fair opportunity principle. If Mills and others are right that redress is needed for past injustices, there is no reason to think these should only be provided to the extent that they are required to equalise opportunity. Compensation is recompense for past wrongs. This is backward looking, rather than forward looking, as Shelby’s approach seems to be.
In sum Mills seems to be on strong ground to say that Shelby’s proposal cannot deal with the claims of those who believe a whole range of compensatory measures are needed to rectify the past history of racial injustice. However, Shelby’s suggestion may have merit in terms of its chances of being accepted. It may represent a workable response to racial injustice in a world which is non-ideal, and will continue to be non-ideal, in many respects. This is, however, something closer to a pragmatic way of mitigating injustice than providing what many feel is owed.
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Jo Wolff BSG 