Habermas, Lyotard and the Concept of Justice

HABERMAS, LYOTARD AND THE CONCEPT OF JUSTICE

EDINBURGH STUDIES IN CULTURE AND SOCIETY General Editors: John Orr and Colin Nicholson John Herdman THE DOUBLE IN NINETEENTH-CENTURY FICTION David McCrone and Brian Elliott PROPERTY AND POWER IN A CITY: The Sociological Significance of Landlordism John Orr TRAGICOMEDY AND CONTEMPORARY CULTURE: Play and Performance from Beckett to Shepard TRAGIC DRAMA IN MODERN SOCIETY: A Sociology of Dramatic Form from 1880 to the Present TRAGIC REALISM AND MODERN SOCIETY: The Passionate Political in the Modern Novel (Second Edition) Duncan J. Petrie CREATIVITY AND CONSTRAINT IN THE BRITISH FILM INDUSTRY

Habermas, Lyotard and the Concept of Justice Stanley Raffel Senior Lecturer in Sociology, University of Edinburgh

© Stanley Raffel 1992 All rights reserved. No reproduction, copy or transmission of this publication may be made without wriucn pcnnission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terrns of any licence permitting limitctl copying issued by the Copyright Licensing Agency, 90 Totten ham Court Road, London W 1P 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1992 by MACMILLAN PRESS LTD Houndmills, Basingstokc, Hampshire RG21 2XS and London Companies and representatives throughout the world ISBN 0-333-47323-X A catalogue record for this book is available from the British Library. 9

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Printed in Great Britain by Antony Rowe Ltd Chippenham, Wiltshire

Contents vi

Acknowledgements

1

Introduction 1

Habermas

13

2

Lyotard

49 86

3 Justice

Notes

118

Index

121

v

Acknowledgements I am greatly indebted to Peter McHugh. In particular I must single out his essential help with the formulation of justice, his advice as to relevant readings, his suggestion of perhaps the key example for this work as a whole, and his criticisms of an earlier version of the chapter on Habermas. John Orr has been a very sympathetic editor throughout and was particularly helpful in his suggestions concerning the Intro­ duction and Chapter 3. I want also to thank my wife, Elaine, and children, Aaron and Joel, for all their support both during the long period when this book was, in some sense, developing and, especially, during the shorter but still considerable period when it became necessary to work overtime in order to actually bring the project to completion.

vi

Introduction I Ever since both the social movements and intellectual currents that peaked in the late 1960s, there has been a change in the basic goals that many emerging social theorists have set for themselves. These theorists all have in common that they have accepted that there is really no possibility of either mounting or justifying one's theory on the basis of its putative descriptive adequacy. Whether it is believed, as some do, that a neutral description is literally imposs­ ible or, as others do, that if all one is doing is describing, then one's own activity of theorising is impossible to justify, all these theorists have in common that they have embarked on a search for alterna­ tives to the standard scientific goal of descriptive or observational adequacy. Instead, they are beginning to propose theories that are admittedly normative; that, in other words, instead of just pre­ tending to describe how society is, theories that are both implicitly and explicitly making evaluations about what a society ought to do, be, what it needs, what would be desirable for it, and so on. In even contemplating such an enterprise, all these theorists face an obvious problem: if we now tend to think that would-be empirical, observational theories are not valid, at least we can imagine how they could have been valid, i.e. in so far as they really do describe the world correctly. By contrast, what sort of standards could we even begin to use to evaluate avowedly normative theories? How are they not, to use a well-worn but perhaps still not adequately addressed question, just someone's personal opinion? This work begins with an extensive examination of the work of two theorists who are both part of this wider trend of proposing theories as to how society ought to be. They also at least attempt to give us some ways of assessing the adequacy of their method. The two are Habermas and Lyotard. Habermas, in his most recent work, is claiming that we can know his proposals for society are rational because they are what we would all choose if we were able and willing to communicate rationally with each other. Lyotard, in his influential recent book, The Postmodern Condition, is claiming that we should all support his proposals because they will leave us 1

2

Habermas, Lyotard and the Concept of Justice

all free from coercion (even the coercion he claims to be able to detect in Habermas). We shall seek to explore thoroughly and criticise these two theories; to determine, in detail, what sort of social life their implementation would really lead to. We shall, of course, discuss what these two social thinkers say would happen if we adopted their theories, but we shall also consider what, we

suspect, would

really

happen if we adopted their theories, the

latter issue coming to the fore especially as we develop all the implications of the two theories, even many that the authors themselves have probably not foreseen. At the same time, as this exploration develops and, more directly, in the final chapter, we shall also be proposing an alternative to them, a third theory. However, it is important to declare, even at the outset, that,

whatever the criticisms, there will be no criticism of Habermas and Lyotard for attempting a normative rather than a sheerly descrip­ tive theory. In other words, the theory proposed here will be normative as well. The first two chapters of this work, then, consist of an engage­ ment with recent writings of these two influential thinkers. Chap­

ter 1 is exclusively devoted to Habermas. He is the leading heir of the intellectual tradition called Critical Theory. We still tend to associate this tradition with its Marxist background. However, for many years now, Habermas has been taking Critical Theory in directions that certainly would make it difficult to depict its main thrust as Marxist, at least in any ordinary sense of that word. Perhaps the fairest summary of what Habermas can now be said to be attempting to do is to sustain and develop not just Marxist

theory but the far wider current of both social thought and societal

trends that can be subsumed under the label Modernity. If there is anything that Habermas definitely believes in, it would have to be

progress, both intellectual progress which he sees exemplified in

the developing nature of thought, e.g. he makes much of the

development of modern science and, more generally, the Enlight­

enment which he sees as the essential philosophical accompani­ ment of modern Science, and social progress which (like Marx) he sees in both technological development and (much more than Marx) social structural and cultural changes such as the growth of democracy, of citizenship, etc.1 At the same time, he also sees Modernity as an incomplete project, as something that needs further work if it is to achieve its full potential, and it is as a contribution to this project that he

Introduction

3

would situate his own theorising. The particular focus that his attempts to develop the positive potential of Modernity have been assuming concerns the problem of rationality. Habermas has lo­ cated what he believes to be the crux of the matter not in Marx, but in what is ordinarily taken to be an alternative sociological tra­ dition, namely that of Weber. Habermas suggests that Weber was perceptive in focusing on rationality as the distinctive feature of Modernity, but wrong to identify instrumental rationality as the most important and most typically modern form of rationality. Habermas believes that a new version of rationality, what he calls communicative rationality, is more what modernity is already heading for, rather than Weber's much more (according to Haber­ mas) limited alternative; also, importantly, he believes that once we come to see that there can be more to rationality than the Weberian instrumental criterion, we will also see that rationality in this new sense will have a liberating potential. Given this, we will no longer need to share Weber's pessimism about the developing modern, i.e. rational world. Given his own intellectual roots, the sources that Habermas draws on for his theory are extremely surprising. Thus, the method of the book we focus on, Volume I of The Theory of Communicative Rationality, is, by his own admission, modelled on what Parsons did in The Structure of Social Action. Like Parsons, he attempts to reconstruct major previous sociologists as all essen­ tially converging toward one idea: in Habermas's case, the idea being communicative rationality. The people he selects as making the major substantive contributions to this general development are, if anything, even more surprising. For example, Habermas credits Parsons himself with having discovered one essential building-block for Habermas's theory, namely the existence of norms; Coffman with having discovered another, techniques for adequately displaying one's self, one's feelings; and Mead and ethnomethodology for having discovered modes for managing to be communicative with others. The entire book is about the nature of communicative rationality and what he thinks it makes possible. His most fundamental claim as to what it does make possible is that it could give us the ability to come to (rational) agreements. And this, in turn, could enable speakers to work out what is the 'right thing to do' in any given case. If Habermas is right that we could, if only we would begin to communicate rationally, always decide what would be the right

4

Habermas, Lyotard and the Concept of Justice

thing to do, it means that we would have a way of determining just outcomes. Thus, as White has also pointed out, what Habermas is ultimately offering us is a possible method for determining justice in the sense of deciding on the just outcome in any actual case. As White puts it: 'Habermas argues that minimal criteria of justice are derivable from his conceptions of communicative action and com­ municative rationality.'2lt is this aspect of Habermas's work which we shall be particularly concentrating on. As we consider his work, we shall seek to determine whether, indeed, his method would lead to 'just outcomes' and, even more basically, whether his underlying concept of justice is adequate: whether, in other words, there might, in the end, be much more viable alternatives. Chapter 2 considers the work of the thinker who is probably Habermas's most influential current opponent, Lyotard. Lyotard is a leading member of the fashionable intellectual movement called Postmodernism. In order to gain an initial sense of this, it is necessary to trace the movement back, albeit very briefly, to the field in which it was initially developed: architecture. The history of architecture is replete with radical departures, but it can be argued that Postmodernism was proposing a novel notion in the field. All previous architectural movements had in common the interest in finding some way of producing an overall unity for a given piece of work, whether by Classical symmetry, Renaissance balance, or even the modern idea of letting the function dictate all. In contrast to all of these and also many other possible notions, it was the singular discovery of Postmodern architects that one did not always actually need to have any overall plan or unifying principle. At least some pieces seemed to hang together even though one could never claim that there was any underlying unifying idea. Thus, there was, for example, the Postmodern discovery that one could produce pleasing effects, and coherence in at least some sense of the word, not by having a method for relating the parts at all but by putting the clearly different elements next to each other, e.g. the old and the new, such as symbols of different architectural eras side by side. It is Lyotard's ingenious contribution to see how this sort of notion might actually be applied to the needs of a social theory as well. He suggests that, just as Postmodern architects say that we need not have a unifying principle to have an at least interesting building, we do not really need an overall organising principle either for a society or for one's theory of society. This becomes his

Introduction

5

method for criticising previous social thinkers. Thus, the two (in his view) major theories of twentieth-century sociology, Marxism and Parsonianism, can both be interpreted as attempts to produce a society on the basis of some unifying principle. In Marx, the principle would be the ending of the class struggle, in Parsons it would be the fitting together of all the parts into a whole. As such, as attempts at finding some principle that will unify, both are fundamentally misguided. The good society, like the interesting Postmodern building, will come when we stop even looking for a way to fit it all together, whether by the image of a class struggle, the image of a whole and its parts, and instead accept the inevit­ able lack of any overall principle. We should just let the parts juxtapose themselves against each other. In other words we should accept all the disagreements and let the lack of unity freely develop. Lyotard criticises Habermas's work as a sort of last ditch and so, Lyotard believes, essentially old-fashioned, attempt to find some unifying principle - in the case of Habermas the principle he is mistakenly searching for being the communicative agreement among all the actors that we have identified as Habermas's essen­ tial goal. Lyotard suggests that such agreement is both unnecess­ ary and even 'terroristic', in the sense that it involves an unwarranted and unwanted imposition by one person (the theor­ ist) of just his notion of what everyone should do, think, etc. So, he lumps Parsons, Marx, and Habermas all together as people who erroneously think there needs to be something that holds a society together. Yet (possibly inconsistently) Lyotard does himself think that there is at least one thing that we could and should all agree that society needs, namely justice. His work largely consists of an attempt to develop a version of justice which is in keeping with his basic interest in avoiding the imposition of any over-arching re­ quirements of unity. This develops into an interest in never de­ manding that anyone ever agree with anyone about anything, always leaving all of us free to enter or leave social arrangements whenever we personally see fit and similar sorts of ideas. It is not hard to see that the main thrust of Lyotard's notion here is to

criticise and develop an alternative to Habermas's version of justice as we have briefly elucidated it above. That is, if Habermas is both working to attain and claiming, in his theory, to show us how to attain justice in the sense of outcomes to which all members of

6

Habermas, Lyotard and the Concept of Justice

society will, so long as they are rational, agree, Lyotard is saying, by contrast, that he doubts if all members of society could ever agree about anything. Furthermore, he suspects that if there ever was an apparent agreement, it would really have been produced by some subterfuge, by the hidden coercion exercised by whoever was requiring agreement. So, looking for agreement (Habermas) is really just coercive and so, in fact, furthers injustice. Lyotard, then, is querying why we even need agreement for justice. Indeed, as he forcefully argues, is not the whole idea of justice more a matter of not expecting agreement, not imposing anything (even Habermas's hope of agreement) on others against their will? So, instead, he proposes as justice a serious attempt to never coerce anyone, to just let everyone be free to do what they want, including only to agree when and in so far as they want, in the same vein disagree when they want, come and go as they please, etc. As a practical proposal, this becomes a recommenda­ tion that what we form and all we ever form are what he calls 'local contracts'; that is, temporary agreements which are not even expected to last over time or extend in space beyond the immediate occasion. And he sees this already evolving in society- certainly in sexual relationships; in education as well, e.g. via the trend away from formal universities and towards service institutions; and even in international affairs, e.g. with forms of association like the Common Market replacing the Grand Alliance, and, furthermore, he welcomes these sorts of trends as examples of justice in his sense, that is, no one forcing anyone else to do anything. Chapter 2 of this work largely consists of an attempt to draw out the implications, for social life, of Lyotard's version of justice. Much as with our analysis of Habermas, the emphasis is on unforeseen and unintended consequences that, arguably, would result from the full implementation of Lyotard's ideas. While we could never, of course, deny that there are major differences between Habermas and Lyotard, especially in view of the fact that Lyotard's concept of justice is a self-conscious attempt to criticise Habermas's concept of justice, a surprising result of our work is that we come to see their differences as, in some ways, much less significant than their similarities. The major similarity, at least on the substantive level, is that the two thinkers share, albeit for opposite reasons, a failure to identify or even in any obvious way associate the notion of justice with the idea with which it has

Introduction

7

traditionally been most linked, the notion of desert. In Habermas's case, as we try to show, this is because he is requiring the just outcome to be something that could be inevitable (this require­ ment, as we also try to show, being the only way he is able to satisfy his own requirement, mentioned above, that everyone would be able to agree as to the justice of an outcome). Clearly, if something could ever be literally inevitable, then the question of whether it might be deserved or not would not even be worth considering. In Lyotard's case, as we also try to show, it is the opposite idea to Habermas's that results in his not addressing issues of desert. As we already suggested, Lyotard objects to anything being required if there is to be justice. We argue that the implication of this view is that the just outcome, for him, is always a kind of accident. If justice is to be identified with the occurrence of the accidental, again clearly, the notion of justice will not have anything to do with issues of what is and what is not deserved. This anticipates how our version of justice is fundamentally different from both Habermas's and Lyotard's. We do think there is something to be gained by thinking about issues of justice as issues of what is and is not deserved. This theme is present in our critique of Habermas in Chapter 1. We try to show how his own method could turn into something much more rational by allowing reflection on just outcomes to replace his attempts to identify just outcomes with inevitable ones. It is also present in Chapter 2 where we try to show how Lyotard's method as well would be better served if he would consider what deserves to happen rather than letting (as we formulate him) accidents just happen. How­ ever, it is most directly discussed in Chapter 3 which is devoted to the full articulation of our alternative theory of justice. This could perhaps be best described as an attempt to return to the idea that we could think of justice as what is deserved, albeit with the possibly novel addition that to do so profitably, one would have to jettison the equation of the idea of what anyone might deserve with what they might have caused in some scientific sense of the word.' Here, departing from the standard modern view as es­ pecially exemplified by Rawls, we shall argue that it is still feasible to think of issues of justice as issues of getting the outcome one deserves, but only if we can reconceptualize what is deserved as not what one has caused but what (in a sense to be developed in the course of this work) fits with what one has done.

8

Habermas, Lyotard and the Concept of Justice II

Particularly if one thinks of this work not as about justice but as about Habermas and Lyotard, one could argue that its topic is not, nowadays, all that novel. On the other hand, the method probably is relatively novel. It is an attempt to practise the form of sociology that is 'self-reflective' in the sense in which Alan Blum and Peter McHugh use that term.4 This type of sociology has developed out of Blum and McHugh's and their students' engagement with a wide variety of philosophical and sociological sources which have in common a rejection of Positivism. In particular, one could cite the influence of Garfinkel's original version of ethnomethodology, in which he disputed the claim that the statements of sociologists could have descriptive adequacy and, instead, suggested that we treat even supposedly scientific sociological speech as something reflexive, in other words as something that could be best under­ stood in terms of what it, itself, was constructing rather than in terms of whatever object it might purport to describe.5 Unlike others influenced by Garfinkel, Blum and McHugh inter­ preted this fundamental point as both a statement as to the nature of any possible sociological theory and a challenge; the challenge being to construct a form of sociological theory in which the self-reflective character is not a debility but a potentially positive feature of theoretic work. This involves, among other things, understanding theorising as active, constructive work, with the theorist, in and as he works, both implicitly and explicitly putting forward certain values and rejecting others. As Blum and McHugh put it in describing some of their own work: It should be clear that our work here - the writing - is an instance of social action. What we say is not self-evident; we have purposes, make decisions, invoke rules, and gloss other options in ways that are oriented and decisive. 6 An important part of this work is not just to do this afresh but also to attempt to reorient our ways of assessing, using, under­ standing, etc. existing theories by investigating them, not as either successful or unsuccessful attempts at objective description but in terms of what they are implicitly and explicitly constructing, as, in other words, having reflexive potential. Chapters 1 and 2 can be depicted methodologically as attempts to engage in this sort of

Introduction

9

constructive work with regard to the texts of Habermas and Lyo­ tard. So, we seek there to discover what is really constituting each of their texts, what they are essentially committed to, what is animating them. For example, we come, in the end, to make sense of Habermas's speech via the idea that what he is really interested in is immunity from criticism. This is not to claim that this is how he initially thinks of himself (there being no news in our approach were this all we could identify), nor that this is even say, his hidden purpose, but it is to claim something, hopefully helpful, with regard to his work, namely that this is the underlying notion that best makes sense of everything we find in his work, e.g. that it begins to make even the apparently irrational features of his approach (we identify several), if not rational, at least intelligible options for him to have adopted. And, in Chapter 2, we attempt the same sort of enterprise with Lyotard. A further important point is that it seems to be an inevitable feature of such reflective work, at least insofar as one seeks to develop it in any depth that it should become self-reflective. One is also both indirectly (via its reflection in what one notices, selects, etc.) in the others one examines, and more directly (in that it seems pointless even if it were possible, to explore others' values from a position totally outside one's own), engaged in work that ought to become self-reflective in the fullest sense of the word. To explain this movement from reflection to self-reflection in terms of the Habermas example already cited, once one at least believes that one has discovered that the best way to make intelligible every­ thing one's interlocutor is both proposing and omitting to propose is a deep interest in immunity from criticism, there is something inherent in even making that discovery that, unless one cuts the process short, one seems to have every incentive to address the related but further question of whether one does oneself value whatever value has been uncovered and, if not, from the stand­ point of what alternative. Hence, this sort of reflective work, again assuming it is not cut short, always tends to turn into some form of self-reflection. Here we see both a similarity and a difference from another tradition which has certain definite affinities with the one being described here. In particular, the reader may find, as this work develops, that it reminds him or her of ordinary language phil­ osophy. There too one finds the theorist moving from what people actually say to some sense of an underlying principle that is

10

Habermas, Lyotard and the Concept of Justice

implicitly being exemplified in the ordinary speech. For example, think of Austin's analysis of what sorts of underlying assumptions and so, in a sense, valuations, we are, in effect, committing ourselves to whenever we make an adequate excuse! There is a definite similarity here to the kind of movement that we make from Habermas's and Lyotard's texts to their underlying assumptions which would, among other things, belie the possibility that what is being attempted here has no viability. At the same time, there is a difference and this is that, arguably, ordinary language philosophy still thinks of itself as just another form of neutral description, albeit of speaking patterns rather than of more ordinary objects whereas, to repeat what was said above, it does seem like just a foreshortening to recognise that values or underlying principles lie behind whatever is concretely said or written, without that turning into a self-reflection that would include a conscious interest in what might lie behind whatever one would or is oneself saying, proposing to say or refrains from saying, etc. A final introductory point is that, though self-reflection is a distinctive method for doing sociology, it is not just a method. It is also a developing body of substantive ideas. Obviously, I would hope that this work could make some contributions on this level. Suggesting what such a contribution might consist in involves anticipating what, in the course of this work, we attempt to explain, develop, justify, etc. at much greater length. However, suffice it to say here that, as part of our development of the notion of an interest in justice as an interest in what deserves to happen to an actor, in contrast to the many versions of justice that treat it as just an evaluative conception, we come to emphasise that issues of justice in this sense could also have cognitive import: they could help the actor to see which of his circumstances are more (those he deserves) and less (those he does not deserve) validly attributable to his own actions. Now, whatever the ultimate significance of this way of thinking about justice, one thing that is clear is that it is a way of thinking, an idea, that could benefit the would-be self-reflective actor. How so? A very hostile reaction to the self-reflective method as depicted above would be to conclude that the whole enterprise is hopelessly solipsistic, as in the conclusion that it seems to allow for no other reality than the actor's own creations. But a somewhat less hostile reaction would still surely lead one to at least ask: is there, with this method, going to be any way to distinguish actors from the

Introduction

11

world? In other words, can one ever decide what is the stuff of self-reflection and what is better seen as just there and so not material one could profitably be self-reflective about? We would say that this is really a problem but we would also say that one could develop ideas, thinking resources as it were, that might allow one to deal adequately with this problem. We would see justice, as we formulate it in this work, as an idea, a way of reflecting, which could help with this problem. There is an important general issue here. Those who have been very dismissive of self-reflection have normally failed to see how its substance, its ideas, often constitute, among other things, attempts to answer some of the possible objections to it. For example, a very obvious objection to the whole idea of self­ reflection is that it is difficult to see how it can get anywhere. To put this objection more carefully, one could wonder how such work could ever progress, because whatever the actor 'discovers' must in some sense have been there even at the outset. In other words, if it is really his 'self' that he discovers, how is the work not just a constant return rather than any sort of movement? The problem is that this objection is often made without even ever acknowledging that Blum and McHugh have at least developed an idea that orients to this possible criticism. Specifically, they suggest that we could think of comedy as an attitude that could be relevant here; that is, that we could think of comic development as, in terms of this issue, an interesting form of development, in that while things certainly develop in comedy, e.g. they unfold, they go off in different, often surprising directions, they also do so without ever, as it were, ceasing to be what they were in the first place. As they put it: 'the ironic (comic) interest is enlivened by the power to imagine the working out of self-identity as an unfolding of movement and development'.8 Further discussing this idea of 'working out', they say: 'This working out is the notion's self­ development; it is its reflection into itself wherein it develops (works out and makes explicit) what essentially (and implicitly) belongs to it.'9 If this seems excessively abstract, think of the typical comic hero, e.g. Basil Fawlty. It is probably not adequate to see everything that he typically does or has done to him as a total repetition. For one thing, that would make it hard to explain why we find the shows enjoyable. It is not, then, a matter of total stagnation. There is movement, what Blum and McHugh call, in the first quotation, 'unfolding and development', but at the same

12

Habermas, Lyotard and the Concept of Justice

time the movement is, in their words, 'self-identifying' in that no matter what sometimes surprising form it takes, it never seems to get away from what it already was in the beginning, i.e. it never ceases to be Basil Fawlty. So, this certainly suggests that if one could grasp comic development, comic movement, one could no longer think that the whole idea of self-reflection rules out move­ ment. The second quotation gives additional help on how we could imagine the possibility of such movement. That it is implicit means that it is already there in the beginning, as one's self in self-reflection is already there, but there still could be movement or development without it getting away from the self; the movement could be the becoming ever more explicit of what is implicitly there. To express it in terms of the example, we could see this sort of movement (in other words, the coming to be explicit), in people saying about a comic hero, e.g. Fawlty, that a particular episode was 'pure Basil'. In Blum and McHugh's terms, this would mean that, on that occasion, one felt one got a really explicit develop­ ment of his always implicit self. So, again, we could suggest that, if the above is a possible version of comedy and comedy is a recognisable experience, then at least the idea that there can be no movement where there is self-reflection is not valid. Furthermore, this was only meant as an example of a more general point, namely that the possibility of self-reflection should not be assessed in isolation from the ideas that self-reflection is already producing, e.g. Blum and McHugh's highlighting of the possible import of comedy. Similarly, one point about the idea of justice as we develop it here is that it might help one to see how self-reflection could be a more viable possibility than it might initially appear to be.

1 Habermas I Habermas's most recent work, The Theory of Communicative Action, makes a major claim: to be able to determine what, in any imagin­ able case, would be the rational thing to do. It does so by propos­ ing a method of speaking which, Habermas believes, if only all speakers would be willing to adhere to it, would provide us all with a way of deciding in what the rational outcome would consist. The method involves three distinct ideas, that speakers speak in ways that are correct or appropriate in terms of norms, that they speak in ways that are subjectively truthful or, in other words, sincere, and that they do not speak in ways that show ignorance of physical reality. An example will clarify what he means: Let us assume that a seminar participant understands the fol­ lowing request addressed to him by the professor: 7. Please bring me a glass of water. not as a simple imperative or sheer expression of will but as a speech act carried out in an attitude oriented to understanding. Then he can in principle reject this request under three validity aspects. He can either contest the normative rightness of the utterance: 7' No. You can't treat me like one of your employees. or he can contest the subjective truthfulness of the utterance: 7" No. You really only want to put me in a bad light in front of the other seminar participants. or he can deny that certain existential presuppositions obtain: 7"' No. The next water tap is so far away that I couldn't get back before the end of the seminar. In the first case, what is contested is that the action of the professor is right in the given normative context; in the second, that the professor means what he says (because he wants to achieve a certain perlocutionary effect); in the third, the truth of

13

Habermas, Lyotard and the Concept of Justice

14

propositions the professor has to presuppose in the given circumstances. 1 So the proposal for rationality amounts to giving speakers, e.g. seminar participants, three tools for deciding whether a request is valid: they can cite their normative position in terms of how that can affect what is or is not appropriate to do, they can require that all speakers at least be sincere in their speech, and they can cite physical realities, e.g. the distance away of a water tap, as grounds for refusal. Though this general proposal certainly seems to offer the prom­ ise of a method that could help us all toward rationality, it turns out that, if we actually seek to determine how the method Haber­ mas is proposing would work out in practice, some very peculiar results emerge. Perhaps the most glaring peculiarity concerns the

7"'

no: 'No. I could not get back before the session ends.' Presum'

ably he is saying that if we cannot say no in this way or, in other words, if we

can

get back before the session ends, unless we can

say no in either of the two other ways, we must say yes. So, he seems to be saying that unless one can argue that basic norms are being violated, i.e. unless one could say he has no right to ask one for a drink or, alternatively, unless one were prepared to claim no valid substance whatsoever for the request, i.e. unless one is willing to argue that all he has in mind is putting one in a bad light or, in other words, once one conceded even the most minimal thirst, then one seems to be forced to get the water even if so doing would involve missing virtually the whole session. That is, the method seems to leave us with no way to say no when getting the drink would be physically possible but inconvenient to the point of ludicrousness. Additional aspects of the peculiarity of his results can also be seen in terms of

7'

and

7" issues.

Concerning

7",

once one cannot

say no on grounds of sheer physical impossibility and one cannot deny that the normative context does not rule it out, one seems to have to do it, no matter how bad a light it puts one in, unless one could prove that the professor is totally devoid of thirst or, in the participant's words, that he

'only

wants to put me in a bad light'

(my emphasis). We are not allowed to say no even if it does put us in a bad light unless we can actually claim that

all he wants to do is

put us in such a light. A further issue here, of course, would be how we could ever be certain of this and so how we could ever

Habermas

15

come to say no in this way. With regard to 7', one seems left with very little scope to actually discuss normative issues, in this case employer-employee relations, so that it is as if once one admits that the professor may be thirsty and that water is physically accessible, one seems locked into a demeaning relationship. That is, he seems to be saying that once one concedes that he can treat one like an employee, one seems forced to get him a drink no matter how inconvenient and embarrassing it happens to be. Thus far we have concentrated on how hard this method makes it to say no when the water is not close at hand. However, it also makes it equally difficult to say yes when the water is close at hand. If this is the situation, in terms of 7' Haberrnas would seem to be saying that no matter how easy and unembarrassing the task would be, still we should not agree to it unless the person making the request can treat us like an employee, as if in this model, whatever the situation, one thing that will never happen is that the professor would get a drink for a seminar participant. In terms of what Habermas seems to be saying is that no matter how

7",

accessible the water and legitimate the request, we are still ex­ pected to scrutinise the professor's personal motivation before we are free to agree. Furthermore and perhaps most damning, in terms of

7"',

in that he expects us to say no if we cannot return

before the end of the session, he actually seems to be saying that we should always refuse if we could not be back by then, which overlooks urgent situations, e.g. the professor is fainting, when one would at least like to think that the need for water could take precedence over the need for the seminar. Here we can touch, in a very preliminary way, on the basic source of Habermas's troubles. His underlying purpose is to base all the yeses and noes on various facts which, once revealed, would force any rational listener to agree that a request was or was not justifiable. 7"' is the clearest case of this. He suggests, else­ where in his book, that every speech act involves 'existential presuppositions'', that is, facts which may be either true or false. Just as those who say 'it is raining now' presuppose that it is, those who ask for water presuppose that there is water to be had and this can, he hopes, like a claim about rain, be right or wrong. But the problem seems to be that whereas the fact that the water is a given distance away may remain undeniable to any rational listener, in practice it proves difficult to use this fact for the sort of conclusive help with the decision toward which Habermas is aspiring. So

16

Habermas, Lyotard and the Concept of Justice

attempts to rely on the fact seem to raise both the irrational possibility of the drink arriving, undeniably before the seminar ends, but much too late to help with the talk, and it also raises the equally irrational possibility of someone declining to fetch water for a fainting professor on the undeniable grounds that so doing would mean that they would have to miss the seminar. To sum­ marise what is presenting the difficulties here: whatever the attrac­ tions of being able to point to a definite fact or reason for saying yes or no, so doing seems to be having the effect of making us unable to get something that might really be needed and, at the same time, compelling us to get things when it is likely that the circum­ stances required to get them would render them, by the time they are obtained, completely useless. The fundamental problem, then, might be that it is not really feasible, as Habermas hopes, to determine justifiable outcomes by appealing to definite facts. In­ stead, in attempting to rely for a justification on a fact, e.g. the distance away of a water tap, one seems to end up with a decision that is not justifiable both in the sense that sometimes when what would definitely seem justified would be to say no, e.g. when one might have to miss almost the whole seminar to get water for a not even very thirsty professor, overdependence on facts seems to force one to say yes and when it would definitely seem justifiable to say yes, e.g. when the professor is fainting, overdependence on the same facts, seems to force one to say no. This is a theme we shall be returning to throughout this chapter and in this work as a whole. However, to continue our detailed assessment of the immediate implications of Habermas's method, thus far the original request for water has been treated as a given, the only issue being how a listener might respond to it; but if Habermas's method is valid, it should also be usable in a prior way by the professor in seeking to work out whether to ask in the first place. Turning with this issue in mind to 7' first, if 'No. You can't treat me like your employee' is a possibility, it is certainly plausible that the professor would, in his pursuit of rationality, seek to avoid having to face this sort of negative answer and so he might attempt to consider whether he would indeed have the normative right to ask before he does so. The obvious solution would be that he should not even ask unless he has some reason to believe that he can treat the seminar partici­ pant like an employee. The major problem with this solution would revolve around the issue of what to do if the request is not

Habermas

17

undeniably and factually within our rights- if, in other words, we cannot or even are not certain whether we can treat him like an employee. If he is saying that it does not matter if we are not literally dying of thirst so long as the question is appropriate, he would also seem to be saying that, if the question is not particu­ larly appropriate, it does not matter if we are literally dying of thirst. Turning to 7", the difficulty that this criterion creates for the professor is how he could satisfy himself that he is really thirsty. The only at-all-reliable way of satisfying himself of this would be to convince himself that there is nothing extraneous to his request, that all he wants is water. Though this solution could produce some definitely truthful requests, the problem with it could be that, in its eagerness to exclude ulterior motives, it might have a tendency to exclude either mixed or somewhat more specific forms of motive in which it would be difficult to point to one precise reason for a request, so that we could imagine someone wanting a cup of coffee but, committed to this method, being unable to sincerely say that all they wanted was a drink. In such a case, one might be forced to doubt, just because of the presence of some­ thing other than sheer unmitigated thirst, whether one really had an authentic desire for the drink.

II Thus far, problems created by Habermas's method have been pointed out. It is time now to suggest an alternative. I would propose substituting for Habermas's attempt to assess rationality by pointing to definite facts that could justify assessing the ration­ ality of requests by attempting to consider what we shall label collectively as issues of pleasure and value. It remains to be seen whether these new concepts can be more successfully applied to Habermas's material. We shall reconsider 7"', 7" and 7', respect­ ively, with this issue in mind. What we discover is that, though to give him his due and even if some of the criticisms above may have obscured this, Habermas has invented valid problems, reflecting about pleasure and value seems to hold the promise of much more rational solutions. The valid problem in 7'" that Habermas both manages to high­ light and fails to solve has to do with the need to be able to refuse

18

Habermas, Lyotard and the Concept of justice

certain requests on grounds of inconvenience and yet go along with other requests, even though they might, in terms of sheerly physical considerations, appear to be extremely inconvenient. He was unable to deal both with the issue that it sometimes seems ludicrously mean to even raise the issue of inconvenience and that sometimes it is more relevant than the way in which Habermas seems to have to deal with it, namely as equivalent to physical impossibility. Sometimes one would like to be able to say yes enthusiastically even when getting the drink would involve major disruptions and sometimes one would like to be able to say no enthusiastically even when the request is well within the realm of the possible. Inconvenience might not, for the rational actor, always be the right word for activities that make even great de­ mands on us and even things that are not, strictly speaking, particularly difficult physically, in other words things that are quite possible, can, to the rational actor, be legitimately labelled inconve­ nient. Something interesting happens if we begin to consider these two types of cases in terms of pleasure and value. To put it polemically first and then supply the example: if the professor does not clearly need something, even if it would not be physically difficult to get it for him, that is, to put it in terms of the concepts just introduced, if there could ever be a clear case of pleasure without value, feeling like it without in any way needing it, then issues of inconvenience enter very early; well before they do in Habermas's model. Haber­ mas supplies the relevant example in which all the circumstances are roughly similar, i.e. we have another situation when someone is requesting something that may or may not be rational, but the difference is that because, unlike a request for water, as it is difficult to perceive any value (as distinct from pleasure) in the request, even though the example does not indicate how physically difficult it would actually be to go along with it, it somehow gives us the sensation that it would be inconvenient. The quotation is actually from Richard Norman, though Habermas endorses it as his view as well:

To want simply a saucer of mud is irrational, because some further reason is needed for wanting it. To want a dish of mud because one wants to enjoy its rich river smell is rational. No further reason is needed for wanting to enjoy the rich river smell, for to characterize what is wanted as 'to enjoy the rich

Habermas

19

river smell' is itself to give an acceptable reason for wanting it, and therefore this want is rational.' If he used Habermas' s method, the actor would or at least should be as willing to get this for the professor as a glass of water. The rationale for this conclusion is that, as, according to Habermas, there is a reason here, i.e. enjoying the smell, were the dish of mud requested of us, at least in terms of 7"', all we could reasonably ask is whether it was physically possible to go and get it.4 In contrast, even though the equivalent to a reason is here, i.e. even as it is conceded that there would be a certain pleasure, namely the rich river smell again, for the professor in obtaining his dish of mud, one still has the option to object, no matter how close at hand the mud happens to be, insofar as one can see no value, i.e. require­ ment, for the request. In not seeing any value in this request, it makes it seem very inconvenient to go along with it even though, of course, we have no idea how far away we are from the river. The general discovery we are probably making here is that, contrary to both Habermas's and Norman's beliefs, locating some pleasure in a sense like some positive feature of a thing is not enough to make it rational to request it. Obviously the very idea of requesting something entails that at least someone, i.e. whoever has to get it, is going to have to deal not just with the positive features of a thing but with all the requirements of it- for example, everything that would actually be entailed in getting mud to the seminar, such as dirty clothes - and appreciating these require­ ments can give us an additional perspective on a thing. Specifi­ cally, this sense of all the thing would require could provide a better guide to the actual value, such that many things that we could not deny have something positive about them, e.g. mud's smell, might still be far from worth having. They are, at best, inconvenient in the sense that though they are certainly in the realm of the physically possible, whatever pleasure they might have seems to end up requiring so much that, in seeing this, the pleasure can begin to wane. What is developing here is something like the ability to reflect on whether, all things considered, it would really be worth it, as a more rational way to consider the merit of a request. In general, there are complex interactive relations here so that for anything that might conceivably be pleasurable, the rational actor would need to consider the question of what it would entail,

20

Habermas, Lyotard and the Concept of Justice

what its requirements are, before he is really able to say whether it is worth pursuing. The inconvenient, e.g. mud, might fall down here as always ending up requiring so much that any initial pleasure one might have envisioned tends to recede into the background. One could do an analogous analysis with one of the cases that we found gave Habermas trouble: even if the professor only feels like a drink, it still seemed that we would have to get him one so long as one could get back before the end of a seminar. Instead of being trapped in this way, one could say that the farther away the water tap is, the more is actually required of someone in order to get it and this can mean that whatever pleasure there would be comes to seem to lack value, to become not worth having. At the same time, the concepts are flexible enough to handle the opposite sort of case which also created problems for Habermas, when it was true enough that the water may be distant but, because of the urgency of the situation, it seems wrong for that consideration to so automatically enter in. In attempting to find a rational way to make a decision here, we could begin by noting that there are some things that we can think of as having an obvious value, e.g. water for a fainting man as distinct from mud for a man. It is not so rational, in these cases, to necessarily consider what getting the thing would actually require. The logic here would be: if one more or less

knows

something has a value,

then, unlike the previous case, one is freer to think just about whether getting the thing would be physically possible. The issue would not have to be how inconvenient or not it is, which is what Habermas would seem to be forcing us to consider even when the professor would be desperate, if the rockbottom physical fact he can suggest we should attend to is whether we could get back before the end of the seminar. Finally, the third sort of possibility that issues of pleasure and value could also help with is the intermediate case which would probably really be the most common. This would be where the professor is not either desperate or merely pleasure-seeking but has some quite specific sense of how what could be called the pleasure of a glass of water would be worth having at least partly, not because of how little getting it will require, but because the pleasure, certainly unlike even the most enjoyable smelling mud in this regard, has a recognisable value in the sense now of actually helping with existing requirements. The obvious example here would be its value for enhancing the seminar. This could make for

Habermas

21

a very rational request, and at first we might think that would just have the effect of making it even more difficult to refuse. However, what is interesting is that if one did understand this as the under­ lying rationale for a request, though one might well be inclined to accede to it, it would also be true that more rational ways of acceding to it might come into view than the possibilities Haber­ mas envisions. Instead of either saying yes if one could get back before the end or no if one could not, the option that comes into view for this sort of request is delaying the seminar until one gets him the drink. More basically, even if this specific solution were impractical, even recognising that, in the normal case, the pleasure is not separate from but is in some way related to there being some sense of how the request might actually enhance the event, would at least make it clear, as it is not in the Habermas alternative, that if the actual fulfilment of the request would not be possible in ways consistent with the envisioned enhancement, as would obviously be the case even if one could get back before the end of the seminar, then it would no longer be rational to agree to the request. The problem with which 7" is concerned is not the inconvenient request but the insincere one. Habermas's valid point here could be that there are requests that, no matter how convenient, still do not deserve to be fulfilled because, not only does the person not need what he is requesting, he does not even want it. In his example, someone asks for a glass of water when he is not even thirsty, just to put someone in a bad light. However, what we found in our exploration of Habermas's solution to this problem was that the criteria for sincerity that Habermas was able to develop tended to be more appropriate to a desperate need, in that the actor seemed to have to be overly certain that he 'really' wanted the thing in question so that, unless an actor can manage to specify his motivation in this overly rigid way, Habermas finds it difficult to allow that he might be sincere in his desire for some­ thing. One absurd conclusion this led to was that, no matter how entitled to ask for a glass of water one might be and no matter how convenient it might be to get it, still it sometimes seemed that one did not have enough of a reason even to ask unless one were seriously in need of water in the sense that, for example, one's health depended on it, because at least then one could be sure that one was 'really' thirsty and not merely seeking to humiliate another human being. Another absurd conclusion was that an actor perhaps could never ask for anything in which one's motivation was at all mixed

22

Habermas, Lyotard and the Concept of Justice

(the example being coffee) because the inability to point to any one particular reason for the thing might cause one or others to doubt the sincerity of the request. Even though Habermas' s theory seemed to find it difficult to say no even to the most inconvenient requests, it did not seem to offer the analogous benefit. Instead of making it at least always easier to say yes, he seemed also to need to scrutinise excessively even the most apparently straightforward requests. This suggests, then, the need for an alternative method for resisting insincere requests. Another interesting result emerges if we consider this issue in terms of pleasure and value. To put it polemically: if someone does not really want something they request (the insincere person), no matter how valuable the thing may appear to them, i.e. no matter how much they may think they need it and therefore think that if they get it, they have, via their insincerity, attained something of value, they will not actually be able to get any pleasure out of it. The relevant example is the one Habermas has invented to deal with this sort of issue. If, as he has it, someone requests a glass of water 'only to put me in a bad light in front of the other seminar participants' (my emphasis), then, whereas Habermas suggests that the seminar participant has a problem, he overlooks the fact that the person who makes the request perhaps has the worse problem: no matter how valuable he imagines the glass of water to be (it could further his career, etc), he is not actually going to be able to enjoy it. If we can wonder whether someone really needs something in the sense of whether we ought, rationally, to accede to their request if, in spite of all the enjoyment they say the thing will give them, we can see no value to it, we can also wonder how much someone really wants something if, in spite of all the value they attribute to the thing, its power to embarrass others, further careers, whatever, they are still unable to get any pleasure out of the actual thing. There are ways of expressing what is being discovered here which further our general understanding of how jointly consider­ ing issues of pleasure and value can aid our efforts to assess the rationality of activity. There has always been a difficulty in being able to evaluate the rationality of an action, whether one's own or someone else's, once it is conceded that the action is consistent with some underlying value and also would, in terms of that value, be successful. So, if someone happens to value putting other people in a bad light perhaps, say, because it does serve to reassert

Habermas

23

publicly their own dominant position, it is difficult to develop a critique of their action which does not seem to merely depend on other, competing, values and so, of course, begs the question of which values are better. The suggestion offered here is for an assessment of values based on a reflection on the actual pleasure that really acting on those values would provide, even to the actor who presumes to hold the values. We ask the actor to reflect on how accurate his perception that something, e.g. putting other people in a bad light, is valuable by reflecting on how pleasurable the actual doing of the activity is. We are saying, then, that it is problematic to hold to the idea that something really is all that valuable if, as in the example, the supposed value tends to take the form of one drinking glasses of water when one is not even thirsty. And the general import is that there are possibilities for assessing how rational one's values are without merely becoming a convert to other ones. One can ask how valuable an activity really is by asking how pleasurable it really is. An analogous argument could be used to develop the previous example. There has also always been a problem in assessing the rationality of anyone's claim that something gives them pleasure. If they say they enjoy dishes of mud because of the smell, how can we ask them to reflect on this without merely denying their feelings? The usual solution to this is just to say that anything that people say is pleasurable is at least rational for them so long as it does not hurt other people or, in some versions of the argument, so long as it is harmless to themselves as well. One problem we have already been experiencing with this solution is that, once one begins to consider an action in any sort of detail, the criterion of harmlessness quickly loses its potential for helping us to decide what to do. For instance, is it harmless if someone has to miss part of a seminar to get mud for someone? So, it does seem that there is a need for some more positive way to assess how rational some­ one's (including one's own) sense of pleasure is. We would sug­ gest that reflection about value could at least cause reconsideration of one's standards of what is pleasurable. This goes back, of course, to the example of the dish of mud. One can concede Norman's point that one could enjoy the smell but still wonder how rational it would be to request it, by wondering how rational one's sense of pleasure is if one would find it difficult to formulate any value, any positive enhancement, that possessing the thing might give one. So, in a way, the dish of mud is like the opposite

24

Habermas, Lyotard and the Concept of Justice

extreme to the glass of water, as the water functions in this example. The latter enables us to reassess the apparently valuable by at least raising the question of what pleasure it really gives. The former offers the opportunity of some leverage for reflecting on the rationality of one's sense of pleasure by asking us to reflect on what the value of a thing is. Returning now to 7", however, knowing that someone who does not really want whatever he is requesting could not actually be enjoying himself as much as Habermas implies, does not necess­ arily affect his ability to mislead us though to do so we should now appreciate that he would not just have to, as Habermas empha­ sises, request a drink without being thirsty. He would also, signifi­ cantly, have to drink it without being thirsty. In this respect, we must concede, as we shall further develop below, that reflecting on pleasure and value, even if it does produce more rational actors, will not necessarily always make it as possible to actually refuse requests as Habermas sometimes does. However, one definite positive aspect of the alternative concerns the other problem Habermas had, that he tended to make sincere actors excessively self-doubting. The important practical implication of our results for the would-be honest actor is that, instead of needing to determine that he is 'really' thirsty (which leads to all the unworkable effects mentioned above), he would at least be free to ask so long as he were convinced that he could actually enjoy the drink. Thus, with this new method, just as it is more likely that anyone who needs a drink is going to get it even if it is physically difficult, because by reflecting on value one could come to see that the value of things is not in any straightforward way related to the physical difficulty of them, it is also more likely that anyone who actually wants a drink is also going to get it so long as it is not inconvenient because, by reflecting on pleasure, one could come to see that there is not such a need to control one's own or others' actions by applying the standard of how truthful as distinct from how enjoyable the ac­ tions are likely to be. The valid problem with which 7' is concerned is an issue that could still remain unresolved even if we are satisfied that someone either needs or at least really wants a drink: the question of who is going to get it for him. Habermas's solution was that one should agree to go only if the norms so dictated, in this case if it was appropriate to act like the professor's employee. The objection we developed to this way of seeing it was twofold: it seemed that

Habermas

25

whether one did or did not see oneself as his potential employee, one had little leeway. If one did, one almost had to say yes, no matter how little merit one saw in the request so long as one could not doubt either his sincerity or the physical possibility of the task. On the other hand, if one did not, one still did not seem able to volunteer no matter how much merit one saw in it. We can begin further consideration of 7' by wondering whether, now that we have more adequate formulations of what meritorious requests might amount to, both the sort one might rationally need and the sort one might just rationally want, this might affect how the 7' question would even appear to us. That is, if one could be satisfied that someone actually wants (one can see the pleasure for them) something or needs something (one can see the value for them), would it still be the case that one should only get it for them if one thought of oneself as their employee? First considering a situation where someone clearly, sincerely, wants something, in the light of our earlier work on relations between pleasure and value, this could be formulated as a case where, whatever the uncertainties as to the ultimate value of the thing (after all, what, for example, is the definite ultimate value of a glass of water?), it is at least certain that the person in question sincerely believes he would get some pleasure out of the thing. Such an in-between case could be examined, using the basic range of issues suggested by Habermas in his example, if we could be somewhat more flexible than Habermas in applying them. So, a case of someone who is more certain about the pleasurable side of his request than the value side might be someone who may not be certain he is 'really' thirsty but is certainly convinced that he is at least a little thirsty. He would therefore know that he would not be ordering the drink 'only' in order to humiliate someone else but at the same time, as would be realistic in such a case, he would not be all that sure as to whether, if he asked someone, he would be, to an extent, embarrassing them. Fitting with this and, again, probably more realistic than the ability to know, definitely, what is appropri­ ate, that Habermas seems to require, he might actually not be sure whether it would be appropriate to ask someone or not. Finally, and again realistically, it is likely that were someone to get it there would be some inconvenience but the likelihood is that it is not going to be anything as clearcut as Habermas suggests. In this probably typical case, a rational actor could admittedly be unsure whether it would be of value to ask for the drink. However, if this

26

Habermas, Lyotard and the Concept of Justice

is the situation, an important possibility that Habermas overlooks should now be presenting itself. If the request-maker is sure of the pleasure but not so sure of the value, he could simultaneously obtain the former while lessening concerns about the latter by at least offering to go for the drink himself. Being willing to get a drink for oneself if one really wants it would, then, offer at least one solution to how to act without needing to embarrass or inconvenience others in cases of uncertain requirement. Furthermore, the strength of this solution would be that it does not depend, as does Habermas's idea, on being able to treat at least some people like one's employees and so, no doubt, incon­ veniencing and/or humiliating them even if one is being honest with them. Thus, think here of the familiar convention of the secretary getting coffee for the boss. Habermas might force us to conclude that this is basically rational because there are norms backing it whereas we might like to say that, whatever the norms, there would certainly be situations when, even if the boss is sincerely in need of coffee, definitely the boss, and with coffee close at hand, it might still not be the most rational outcome that she always has to get it. Why would the fairly straightforward possibility of people get­ ting things for themselves apparently not have occurred to Haber­ mas? The problem with his notion of needing a definite reason, unlike our notion of pleasure, is that it is too much a matter of either having it or not. If one thinks one has it, it almost seems wrong to attempt to do anything to achieve it, hence his automatic assumption that once one proves it is something that it would be correct for one to have, so long as one has employees, it seems immediately to become part of their job to get it for one. On the other hand, as we have envisioned the situation where someone needs a drink, e.g. where the professor is desperate, the option of his getting it for himself is less likely to be available. Indeed, it might initially appear that seeing this as a matter of a requirement, as, in other words, a case where there is a clearcut definite value rather than, as Habermas would see it, just another potential reason, would make it even more difficult to produce the necessary motivation for someone to volunteer to help. The reason why Habermas's method seems potentially better for this sort of case is that, whereas the way Habermas formulates it, at least the person who has the reason, i.e. the one for whom the employee role is appropriate, is the person who would get the drink, in our

Habermas

27

case one person apparently has the clear need and yet someone else is going to have to get the water. Seeing this situation in the light of issues of pleasure and value, the problem is, in a way, the opposite to the one just discussed. Whereas if someone really wants something, it may be clearer that the thing will give them pleasure than that, in the wider scheme of things, it would have a clear value, on the other hand, if someone really, visibly, needs something it is clearer that there is at least some definite value in getting it for them (it will revive the pro­ fessor, it could improve the seminar, etc.) than that it will be pleasurable to actually do the getting. Here all the issues that the example has at least been alerting us to come to the fore in perhaps their most acute form. Thus it could surely be rational for the seminar participant to reflect: though the professor will be getting something of value, won't the participant be inconveniencing himself, missing part of the seminar, humiliating himself, acting like an employee, etc.? While we would not wish to deny that there could be elements of this in fulfilling the request, we would still argue that Habermas is presenting a misleading picture of what could be involved even here. Specifically, what he is prob­ ably greatly underestimating is that, if it is really clear that one is doing something of value, one thing that there is also likely to be is a certain amount of pleasure in the doing. Because of this fact, to be elucidated now, the grounds of refusal that Habermas envisions, all of which presuppose that there could not actually be any pleasure in getting the professor a drink, are not all that applicable. To begin this elucidation, contrary to the im­ pression he is creating, there is actually a better option than reluctantly putting oneself in a bad light if one cannot challenge the request's sincerity since, recalling that we are now talking about the case when one has managed to establish, in a way Habermas never could, a clearcut value for what one is doing, if there is such a visible need, it is at least arguable that whoever got him the drink would actually be putting himself in a good light. Nor is it right, again as he implies, to see the request as necessarily involving someone in the dilemma of having to miss at least part of the seminar since, again assuming that one possesses the concep­ tual tools necessary to decide that the drink is needed or has value, a much more rational way to see issues concerned with the prog­ ress of the seminar, etc. would be in terms of whether there would even be one or at least a very good one, without the drink. Finally,

28

Habermas, Lyotard and the Concept of Justice

if someone ever actually and demonstrably needs something and one gets it for them, it may not be right to assume, as Habermas clearly does, that the person who does the getting would be acting like an employee since, in such a situation, it would be more appropriate to see the act as doing a favour. This point too could affect the issue of whether the task is as painful as Habermas implies if we could appreciate that, to be able to see oneself as doing a favour is a way of seeing oneself as at least not being humiliated even if or even especially if what one does is not what is 'correct' in terms of the norms. Having applied the concepts of pleasure and value to Haber­ mas' s material, we can now assess both what has and has not been accomplished. It would seem hard to deny that Habermas's way of thinking about this example leads to a series of irrational conclu­ sions, briefly (7"'): that there is something to be said for doing anything that is physically possible; (7"): that one must do virtually an ontological investigation of any request, even one's own, before feeling free to begin to act on it; and (7'): that certain classes of people, i.e. employees, are obliged to do even the most incon­ venient and embarrassing tasks whereas others (non-employees) should never volunteer to do even the most urgent, convenient, and unembarrassing tasks. Second, it has perhaps also been demonstrated that if we think of each of the underlying problems here in terms of pleasure and value, we get the prospect of more rational outcomes. Thus it seems easier both to refuse some re­ quests, e.g. for a dish of mud, and agree to others, if we think of inconvenience as a matter of lack of any evident value rather than a matter of sheer physical difficulty. It seems easier to handle rela­ tively convenient and non-urgent requests if we think of any potential insincerity not as the lack of a real reason but as, if at all valuable, not particularly pleasurable. And it seems to enable us both not to unduly inconvenience others when it is not necessary and to be capable of helping others when it would be necessary if we could begin to appreciate how who does what could be less a matter of the 'correct' allocation of appropriate roles and more a matter of showing value in cases of uncertainty and, in other cases of more certain value, possibly having the opportunity for in­ creased pleasure.

Habermas

29

III We must conclude, then, that Habermas's method leads to a set of peculiar results. While we might therefore at this point be inclined just to dismiss his work, another approach is to at least raise the question of what guiding interest might have inspired him to invent it. That is, even if we must now concede that there is little to be gained, if one's interest is rationality, in being able to talk in the way he suggests, still there must be some rationale for aspiring to talk in this manner as, otherwise, it is difficult to see any point to Habermas's whole enterprise. Just considering the kind of talk it is, what we can note is that Habermas is attempting to do more than furnish us with a way of resisting a request. For this purpose, 'No. I could not get back before the session begins' or, surely, 'No. I couldn't get back within fifteen minutes' would clearly be suf­ ficient. The sense in which 'No. I could not get back before the end of the session' (my emphasis) might at least appear to be the better mode of speaking is that it seems to offer in addition to letting one have a plausible way to say no also to offer a kind of immunity from the criticism that one even could have said yes. In other words, Habermas's seemingly irrational desire to refuse the re­ quest only if it would not just be, by normal standards, much more than going out of one's way, more absurdly inconvenient, begins to make sense if one imagines an actor who, more than just needing a reason before saying no, would have the interest of being able to resist the accusation that he could even possibly, that he even had as a meaningful option, the chance of saying yes. Furthermore, if we correctly identified at least one impulse be­ hind the 7' no, namely the desire that the professor have at his disposal ways of being able to consider whether he has the right to ask before doing so, 7' might also indicate the same basic interest in minimising the chance of criticism. If the norms can be specified in advance, whatever the problems, one advantage there might certainly be is the lessened prospect of ever having to face criticism either about why someone rather than someone else was asked or why, if say one was asked, one decided to agree or to refuse. Similarly, in terms of 7', particularly if we note that he has the seminar participant say 'you only want to put me in a bad light' (my emphasis), while we said above that this seems clearly irrational in terms of ever giving someone a clearcut way to know whether they actually could refuse (since how could one determine that some-

30

Habermas, Lyotard and the Concept of Justice

one 'only' wanted to put you in a bad light?), it might still serve the interest of seeking to ensure that, if one ever did say no in this way, one could argue that what one was refusing to do was something that surely no one could ever expect one to agree to: How could anyone expect one to get him a drink if one is con­ vinced that he is asking you even though he is not in the slightest bit thirsty? Finally, in view of the analysis we have done of the internal reflection 7" is likely to generate in the professor, we can speculate that here again, whatever the disadvantages of feeling free to ask for something only if one can give precise, factual specification of the specific need or desire it is likely to satisfy, with water here being, in the average case, easier to justify than even coffee, one advantage is that a request of this sort would at least seem to offer protection against criticism, even the idea of someone needing water being something it is more difficult to imagine anyone conceivably objecting to than their needing, say, coffee. Thus far, this basic interest we have identified in Habermas, the attempt to avoid even the possibility of an objection, may still seem alien. However, it is arguable that it will begin to seem much less so if we notice an additional feature of the example, that we have, to date, left implicit: it is a professor who is making the request. That is, it is highly likely that what is really exercising Habermas here is the problem of power and how it is possible to develop ways of resisting it. The specific forms that he invents for his three noes begin to make far more sense if we imagine not just one person talking to another but a relatively powerless person talking to one who has power over him. In this case, one could at least begin to see how 'No. It would take me 10 minutes' might not appear good enough, whereas 'I couldn't get back before the end' might have the virtue of appearing foolproof. Furthermore, the otherwise apparently excessive interest of the professor in excluding ex­ traneous motives, e.g. the worry about the possibility of putting people in a bad light, the concern that one be 'really' thirsty could also begin to make more sense if we can also imagine, as an additional aspect of the problem of power, not just the need for individuals to develop ways to resist the power of others, but the need for powerful persons themselves to be able to convince themselves that they are not exploiting others. In this case, even from the perspective of the professor himself, there could also emerge the interest we see in Habermas here, the interest in trying

Habermas

31

to be certain that one's requests are justified by not even being able to imagine any possible criticisms of them. So, we suspect that behind this desire to say something to which it is difficult to imagine anyone objecting is probably the fear that if one does not manage to do this, one is just going to be exploiting one's power or, if one does not have the power, to just be exploited by those who do. Habermas fears that if the seminar participant cannot act as if fulfilling the request is physically impossible, he will be much too open to force or persuasion to get the drink, just because of the professor's authority position. Similarly, the notion of insisting on the sincerity of the desire for whatever one requests could be designed to help protect all concerned (even the per­ petrators) from the sway of arbitrary desires that merely serve to confirm or reconfirm power differentials. Finally, the idea of clear normative entitlement would potentially offer at least some help against the prospect of anyone who is in a powerful position being free to force or cajole everyone else to get them anything whenever they want it. However, what our general results, the irrational outcomes we derive from Habermas, make us at least suspect, is that it is possible that Habermas might be trying to do the impossible here: however admirable the interest in resisting power, it may not be possible to develop really effective ways of doing so if one actually concentrates, in developing one's method, on attempting to make sure that whatever one comes up with will be likely to withstand all criticism, for example even the potential criticisms of the power­ ful person one is actually seeking to resist. This is what we suspect is really demonstrated by 'No. I could not get back before the end of the session'. If a speaker tries too hard to be certain that no one, not even the person whose power he is seeking to resist, would criticise his resistance, it may just have the effect of blunting any effectiveness the resistance might have had. If this conclusion is correct, it poses a problem: how can one resist power rationally? Basically, what we are wondering is whether, in the wake of Habermas' s failure, there might not be another way to resist the arbitrary use of power besides seeking to speak in ways to which no one could object. How might the concepts of pleasure and value help with this new problem, power? The first point is that just the need to demonstrate some value for one's request offers a way of potentially resisting

Habermas, Lyotard and the Concept of justice

32

irrational requests even from the powerful. For example, being able to raise the issue of a thing's value would enable even the professor's gross status-inferior to at least have an argument against the need to fulfil a request for a plate of mud even if it could not be denied that the professor sincerely likes mud, that the status-inferior is very much his employee, and that he could accomplish the task before the seminar finishes. That is, even status-inferiors would have a method for at least raising the issue that is, we suggested, behind 7"', inconvenience not in the sense of the physically impossible but in the sense of the hopelessly imprac­ tical. Or, being able to raise the issue of the thing's value could alert one to obvious senses in which what the request requires is not desirable for

anyone,

e.g. the need for someone to get their

clothes dirty and this could enable even the status-inferior to at least address one issue that is probably behind both 7" and 7' concerns, whether there would not be less humiliating ways to fulfil even sincere desires, e.g. why, even accepting his desire, couldn't the professor at least go to the river rather than vice versa? The most important immediate point, then, is that being at least able to raise issues of value could help overcome the most glaring peculiarity we found in Habermas, namely that his method seemed to force us to agree to even apparently utterly worthless requests if we could not find them either physically impossible, totally insincere, or normatively forbidden. At the same time, if we are now saying that the basic underlying problem Habermas is seeking to deal with is injustices induced by power differentials, we can suggest, by returning to the example, that not only does this problem remain, but arguably the problem could even be getting worse. The reason for this is that Habermas is right to the extent that only if one could produce a response that seems immune from criticism would one have much hope of being totally free from the possibility of further coercion and/or manipulation. Analogously, the kind of questioning that we are envisaging here would both

not be immune from criticism and therefore is open to

manipulation and coercion and therefore at least raises the possi­ bility that it will offer much less protection against power than does Habermas's method. Thus, first and most evidently, while we could imagine that we have given the seminar participant a rational argument against a request for a dish of mud, if he did raise the issue of value as we suggest, surely he would be foolish to think he would be able to do

Habermas

33

so without expecting at least some criticism from the powerful person who made the request. Second, we can see how manipula­ tion and coercion could come to the fore by returning to the example. If the two versions of 7'" are, on the one hand, to be able to claim at least sometimes that fulfilling a request is physically impossible and, on the other hand, to be able to object that it is impractical, if the latter is in a sense preferable in that it would enable one to object to some possible but ludicrously inconvenient requests, e.g. for a plate of mud, an obvious problem with it is how one might resist something like the professor not so much seeing reason when one suggests how much mess there will be but, more, manipulatively further pursuing his request by say, suggesting that you could use a plastic container. One way of responding to this example begins to suggest how an interest in the value and pleasure of requests directly compares with Habermas's interests. There would be something to be said for being able to bring the mud in a plastic container. That is, if one were interested in the pleasure and value of requests, one actually might be interested in how best to do things to the extent that the sheer fact of whether one was being exploited or not might not always be the paramount issue. In contrast, Habermas often gives the impression that his actor would be willing to do virtually anything so long as he is satisfied that he would not be being exploited if he did it and virtually nothing where there is even the slightest chance that he might be being exploited. At the same time, clearly having to get someone a pile of mud, even in a plastic container, still seems a case of power abuse and so we need to consider whether an interest in pleasure and value could generate any possibilities for dealing with the apparently so far increased potential for power abuse here. What we would suggest is that an additional interesting phenomenon comes into view once one begins to think through how questions of value might actually be raised and followed through in this example. Making the point in terms of the most extreme possible case of an abuse of power first, we might wonder what is to stop the pro­ fessor, given his power, refusing even to permit the plastic con­ tainer? As Habermas sees the world, he would probably think that the best way to avoid even this sort of abuse of power would be for the seminar participant to be able to say something like: 'I am terribly sorry but there are no plates. Would you mind awfully if I used a plastic container instead?' What this image of the best way

34

Habermas, Lyotard and the Concept of Justice

to resist power fails to see is that the power of the professor is not a totally secure thing. It is instead something that is subject to influence by his actions: it may increase, it may decrease, it may stay the same, etc. In a way then, even a professor almost has to agree to the more convenient alternative because unless he can show some value, some requirement for doing it his way, it is hard to see how his power base is not going to be seriously threatened. Furthermore, the same sort of analysis could be generalised to deal with the problem of the professor successfully requesting mud even in a plastic container. Probably this would be much more difficult for him than Habermas leads us to believe because, unless he can show some requirement for the thing and not just that it would give him pleasure, there is the danger,

for him,

that he

would appear totally irrational and this might threaten the security of his position. In addition, aspects of this same phenomenon would also have a bearing on the use of the other tactic mentioned above, suggesting a more practical and at least less humiliating alternative, i.e. that the professor go to the river the next day. An initial point about this case is that it provides another example of an objection that, though it might seem to be one that a powerful figure would resist, he actually could not resist without his power being threatened. If he were presented with this alternative: 'No. I must have that mud right now', it would cause too many doubts as to his rationality and, by implication, the legitimacy of his power. However, Habermas could rightly object that though this solution might avoid the humiliation of bringing the mud to the seminar, given the reality of power relations it could easily lead just to further exploitation, e.g. isn't it likely thatthe seminar participant is going to end up taking the professor down to the river the next day? Here we get a fairly vivid sense of the differing interests behind the two methods. Questioning the value of a request could not control the extent to which one might be exploited, coerced, manipulated as successfully as Habermas's ironclad excuses would, at least sometimes. At the same time, even sticking with the extreme example, though there might be the possible injustice of the trip, it would also be important to emphasise that the professor's power would not just be what made one accompany him to the river. It would also be what one would be able to assess in the course of the trip. In particular, it is arguable that only if the professor could manage to show, in the course of the trip, that his

Habermas

35

desire for the mud were more than just a desire for a momentary personal satisfaction would he be likely to emerge from the trip with his reputation intact. We can gain perhaps the clearest sense of these differing ways of conceptualising power if we notice something not yet mentioned in Habermas's initial depiction of his method: he has to 'assume' that the request is 'not a simple imperative or sheer expression of will'. That is, there is no procedure for being able to consider whether a request is just an arbitrary command or, on the other hand, whether it was something at least potentially more rational. By contrast, with our procedure, if one, say, suggested the con­ tainer alternative and the professor would not even allow that, one could do more than assume, one could conclude that all the request is, is just a simple imperative, just sheer wilfulness. And, the further point was that seeing such wilfulness would affect the legitimacy of the professor's power and so could help one refuse to consent. In general, the ability to at least examine whether a request is a simple imperative/sheer expression of will is the ability to have at least some protection against the most irrational form of power, namely sheer force. In asking whether the professor would at least accept the pleasure in a more convenient form or at a more convenient time, we are in effect discovering whether he is merely seeking to impose his will on others or, alternatively, is at least willing to listen to reason. Again, the advantage of this approach over Habermas's is that we do not have to 'assume he has an attitude oriented to understanding'. We can test this. And, further, if it turns out that he does not, it is likely that he will be revealed as someone who just wants to force his way and, as a consequence, he is likely to lose some of the illegitimate power that was causing the problems in the first place.

IV However, at least two further issues remain unresolved. The first has to do with the fact that we have been utilising such an extreme example. Could raising questions of value also offer any protection against wilful imperatives when the powerful were not demanding anything so self-evidently worthless as mud? In other words, if we seem to be conceding that there might even be times when one might agree to this request, e.g. by taking him to the river, would

36

Habermas, Lyotard and the Concept of Justice

this method ever allow any protection against possibly equally wilful but not so self-evidently worthless requests? For example,

could one ever have the ability to detect arbitrary force in a request for a glass of water? We shall deal with this question by briefly attempting to see what sorts of results emerge if we reanalyse 7"',

7", and 7' now with this issue in mind. There is also a further issue, however, namely whether there might not be an additional prob­ lem created by power that Habermas might also be at least at­ tempting to deal with but to which we have not yet really addressed ourselves. There is the problem of those with power not so much grossly forcing their imperious will on others but still getting much more than their share. Besides the problem of the potential sheer arbitrariness of power, there is also its inherent tendency to exploit. Thus far, we have said little that directly bears on this issue and, furthermore, it certainly could be argued that it seems difficult to see how raising issues of value might prove productive here in that so far it seems that so long as the powerful person is willing to subject his desire to certain minimum require­ ments, e.g. a container, or is able to formulate at least some value for his request, we have no strong resources for challenging it. We shall deal with this second issue in the concluding section of this chapter. The first task, then, is to reconsider 7"', 7", and 7', from the perspective of whether raising the issue of pleasure and value could help one to detect the arbitrariness of a request for a glass of water. The basic point is that we would say that even a powerful professor would be obliged to submit to the forms of rationality we enumerated above if he is not to be reformulated as imperious and wilful and so, to be in danger of losing his power. Beginning with 7"' and drawing on our previous discussion, one case was when someone was only very faintly thirsty and so, if the water tap was quite far away, reason would dictate that it is really not worth the trouble. It would be a sign of wilfulness in a sense like visibly just forcing one's whims on others if, say, even the most junior mem­ ber of the seminar responded to his request for water by observing that there is no water tap nearby and asking him how thirsty he

was and the professor, say, told him that was none of his business.

Turning to another sort of case we analysed, when the water had a clearcut specific value, e.g. as an aid to the seminar, as one obvious possibility for rationally dealing with this outcome in a way that did not overly disadvantage anyone we suggested that

Habermas

37

sometimes it would be feasible to delay the seminar. When pre­ sented with the alternative of such a brief delay, one can imagine that, perhaps depending on their personalities, some powerful professors might respond that they would prefer to just carry on whereas others might opt for the postponement but the point for our current issue would be that it is difficult to imagine any professor, no matter how powerful, just continuing to insist that whoever he asked should go and fetch it while he continued to talk without thereby seriously endangering his own authority. Further­ more, an additional way in which rational expectations might serve to enable us to examine the powerful in this sort of case is that, if one rationally as distinct from forcefully requests water in order to enhance a seminar, the others present are allowed to expect that it actually will enhance the seminar so, if one delays a seminar so the professor can have a drink and then the seminar turns out to be abysmal, this could be grounds for concluding that he did not really require the drink and so it could be a way of discovering that his request was more like a sheer expression of will and, again, seeing this could cause a loss of authority. Turning to the third sort of case we discussed, which was when the professor appeared desperate, the mechanism of control on even the most powerful is that, if one agrees to the request with this as one's image of the rationale, then unless the request really does appear to have been urgent, the professor is going to appear more wilful than rational. For example, he could not, at least without appearing excessively wilful, demand a drink because he feels faint and then forget to drink it when it arrives. Turning to 7", when a person insincerely requests water, Haber­ mas probably imagines that, if one had sufficient power, there would be no controls on one's ability to make to others ever more humiliating requests. Hence, the need for such a rigorous test of the 'truthfulness' of requests. However, if one appreciates that, as we tried to show when we first discussed 7", any request, no matter how arbitrary, involves certain requirements on the re­ quester (our example was that the logic of even an insincere request for water entailed drinking it), we can get a sense of the limits to power. It is not all that rational to use one's power to request things that one does not really want because if one does not act in ways that confirm the rationality of the request, here by drinking the water, one's request will be seen to be arbitrary and so the legitimacy of one's power will be subject to doubt. On the other

38

Habermas, Lyotard and the Concept of Justice

hand, if one does act in ways that confirm the desire, i.e. actually does drink the water, since the whole basis for the irrationality of the request here was that one did not really want the drink, even the powerful person is going to do something that we might speculate is beyond even their power to find enjoyable: drink water without being at all thirsty. Turning finally to 7', we shall consider this in terms of the two basic sort of cases alluded to above. First, there was the situation where it is clearer that someone would get pleasure from some­ thing than what the full value of the request was. Here, the proposed rational solution was the professor getting the drink himself. Relating the discovery of this possibility to the problem of resisting the powerful, the point would be that those who ask others to get them things when, in terms of a sense of why the thing is needed, there seems no reason why they could not do it themselves, would be another instance of them being seen to be more interested in imposing themselves arbitrarily and so, could endanger their power. Second, there was the situation where the drink was so necess­ ary that it was not feasible to expect the professor to get it himself and, here, our idea was to argue that the rationality of someone volunteering could stem from the fact that, by so doing, they could be putting themselves not in a bad light but in a good light. These considerations could act to control the sheer wilfulness of the professor because the conclusion that one is putting oneself in a good light as distinct from humiliating oneself depends on it being a case when, at least apparently, the professor does not just want the drink because he wants to show he is a professor or even because he has a slight thirst but because, more as something like a human being, he has a serious requirement to which someone else can show their willingness to respond. So, if the professor wants to be able to put others in a good light (and thereby expect them to rationally assent to him), he would have to not be so arbitrary at least to the extent of not expecting them to agree to everything he might feel like, but just things he could demonstrate a need for. However, beginning with this example, it is fairly clear that the additional problem mentioned above, not the problem of being protected against the sheerly irrational use of force by the powerful but the problem of being exploited or manipulated by them, still remains. Thus, the average professor might not be able, if he is seeking to appear rational, to avoid doing something for himself

Habermas

39

but, surely, it is not at all difficult to imagine how he might be able to argue that it is not all that rational for him to have to get himself a drink before the seminar, e.g. he does not know the way. And, concerning issues of desperation, it is highly likely that professors, if only by virtue of average age, etc. will be in a position to define the notion of 'really needing something' in ways that will greatly advantage them. Furthermore, an additional issue that Habermas could raise about our alternative depiction of 7' is whether the whole notion of favours would not inevitably be subject to ma­ nipulation by the powerful. It might be true that it is beneficial to help anyone who apparently requires it, irrespective of their posi­ tion but, would the resources for asking ever be equally distributed and, would the benefits ever really accrue equally irrespective of

who is apparently in need of the favour? If not, there would always be a tendency to exaggerate the 'needs' of those with power. Returning now to 7", if people became more reflective about requirements, we could perhaps assume that even the most powerful would not be as likely to request things when they had no honest desire for them but, at the same time, it is difficult to see how one could begin to ensure, as Habermas might really be hoping that, say, a professor would need to be as thirsty as a 'mere' seminar participant in order to request a drink. Thus, we were able to suggest that it might not be rational for him to request a drink if he was not at all thirsty, even if the act would serve nicely to humiliate a seminar participant; but what is to stop the mildly thirsty professor from making such a request, so long as he could manage a few sips in the course of his speech? Turning to 7"', while we have perhaps developed stronger resources than has Habermas for resisting the professor coming to inconvenience others in ways that would clearly be deemed ir­ rational, this is still a different matter from what Habermas is probably really hoping for, namely that something like the objec­ tive distance of the water could be the only determinant of whether it was decided to get someone a drink. One idea men­ tioned above for dealing with the case when the water is not all that distant and the desire is not just mere whim was delaying the seminar. While this solution could clearly offer some protection against one individual being forced to go too much out of his way and missing something as well, one could argue that it merely ends up exposing the entire seminar to the unfair advantages given to the powerful. Thus, could one ever imagine delaying a seminar

40

Habermas, Lyotard and the Concept of Justice

not when the professor is thirsty but when a 'mere' participant is, even if he were so bold as to argue that so doing would undoubt­ edly improve his performance at the seminar, e.g. by increasing his concentration as he takes notes?

v

We shall pursue this additional aspect of the problem of power via a further exploration of Habermas's example. It is interesting that what Habermas calls our attention to in his own analysis of power and how it might be rationally (or not) exercised is when the powerful person is requesting something extremely ordinary, something that any person, no matter how powerful, could easily imagine himself requesting. It represents an interesting omission that he is simultaneously failing to consider the much more obvi­ ous ways in which a professor might be rationally (or not) using his power here, but which have the distinguishing characteristic from requesting a glass of water of being not ordinary requirements, inevitable features of anyone's life, but more extraordinary require­ ments, things that serve to clearly distinguish the activity in ques­ tion, giving a seminar, from the ordinary stuff of life. In conducting the typical seminar, the typical professor, even if he never requests anything, is exerting power in the far more glaring sense that he is requiring all sorts of extraordinary things of the other people there. For example, assuming that this event is fairly standard fare, he is expecting a group of people, many of whom will have heard of him, if at all, only by repute, to assemble at a set time and place, setting aside whatever they would otherwise have been doing at the time, even to the extent of disregarding at least minor emergencies that may be arising in their individual lives. They are then supposed to proceed to listen to the professor, if not in rapt silence, with at least a considerable degree of control over their personal decorum, typically, for at least forty-five minutes. Once they are permitted to talk again (the typical question period) they are still expected, no matter how little the professor's mono­ logue actually captured their attention, to at least purport to address their subsequent remarks to him. Following these formal proceedings, typically, at least a sub-set of the seminar must then proceed to entertain the professor, again at least to some extent

Habermas

41

irrespective of his performance, perhaps for the remainder of the day. The point is not so much to remind the reader that to conduct a seminar is to exert considerable power via expecting a series of out-of-the-ordinary requirements to be fulfilled, though it perhaps is true that we do tend to take for granted the extraordinary requirements of a seminar. The point is rather to begin to consider how, if we bear in mind what Habermas appears to neglect, namely that conducting a seminar involves a series of extraordi­ nary requirements, that might transform our understanding of the various possibilities for a rational response to a request from someone in power. Firstly, we should note that the sheer fact that the requirements are out of the ordinary would make it irrational to expect no one to criticise them. This probably explains why Habermas does not attempt to develop the rationality of this aspect of his example. However, what we will seek to do now is to develop some other way in which extraordinary requirements might at least sometimes seem rational to at least some people. We would suggest that the fact that the situation involves extraordinary requirements trans­ forms the issues in at least the following way: if what someone is requiring is extraordinary, a distinctive feature of how it could be rational is that at least some people must at some point feel a strong positive desire for whatever is being required. In the terms used earlier, if it is to really be of value and hence rational, at least some people must be able to find something really rewarding, something pleasurable about what is required. That is, for one's requirement for a glass of water to be rational, it is perhaps not necessary that one can muster anything like a positive commit­ ment to water: it may just be something one cannot avoid, some­ thing one is, in a sense, forced to have at least sometimes. Thus this could be a negative way to explain why no one would criticise this sort of requirement: it is not that anyone really wants it but just that they cannot see how they could avoid it. On the other hand, for the requirement that the seminar be rational, at least partly because seminars are not inevitable in the way water is, at least some people ought to find the requirements, e.g. turning up, being silent, not just necessary (they are not, of course, at least not in a sense like unavoidable) but something they could actively desire.

42

Habermas, Lyotard and the Concept of Justice

A conceptual distinction that could help us to grasp the differ­ ence here, and which will figure strongly in the remainder of this book, is that between when it might be appropriate to reflect on whether an action is rational by confining oneself to reflecting on whether the action is legitimate or not versus when it might be more appropriate to conduct one's reflections by reflecting on whether it is justified or not. We could say here that we would predict more rational outcomes if, when dealing with requests of the order of a glass of water, what one reflected about were issues of legitimacy, e.g. can one imagine any reason to deny this request at this particular time?, but not so much if one reflected on whether the request was fully justified. For example, it probably would not in this case be rational to wonder whether, all things considered, the

water was actually something he was especially deserving of. On the other hand, if one were dealing with requests for a seminar, one would be more likely to produce a rational outcome if, even in one's initial reflections, what one reflected about were more issues of justification, e.g. more than that one just cannot see any reason why this should not happen, that instead, given that if it does happen, it will involve enforcing extraordinary requirements, does one at least have reason to believe that whatever one is requiring is likely to prove justified by whatever one imagines it is likely to make possible? To put it another way, the issue ought to be not so much, is the seminar something the speaker has a right to (that sort of reasoning would be more appropriate for a glass of water), but more, could one at least expect some sort of positive develop­ ment to occur if he has one? Does he at least potentially deserve in a sense like warrant this sort of treatment? That is, does he deserve the treatment not in the sense of having the right, the legitimate entitlement to it, but in the sense that by organising things with regard to him in this fashion, it would be rational to at least expect something out of the ordinary to ensue. Or, to put it negatively, if one had not gone to the trouble of the special arrangements, would it cease to be rational even to hope for what, if one did go to the trouble of generating the arrangements, one could at least ration­ ally have some hope for? Now, the immediate question is how orienting to the fact that there are extraordinary requirements at work in a seminar and that therefore the issue could be whether there is a justification for them, might transform our way of thinking about the options available in the Habermas example. We can answer this question by thinking

43

Habermas

about the two basic sorts of possibilities that come into view once an actor begins to consider not just whether he thinks something, e.g. a seminar, is legitimate, but whether he actually finds what is required of him justified. Obviously, the two basic possibilities are that sometimes he would conclude that it is justified, sometimes that it is not. We would suggest that in

both

cases, we get a

radically different way of reflecting on a valid response to the request. If one does think the seminar is justified, i.e. if one believes the extraordinary requirements are managing to produce a positive experience that one finds it difficult to imagine could have occurred were it not for the extraordinary requirements, if the whole thing was really worthwhile, then the transformation is that one would actually feel much

more justified in

attempting to fulfil

the professor's request than even the most positive score obtain­ able on Habermas' s three criterion would ever enable one to feel. Our basic feeling here would be that he certainly and the important point

deserves a drink vis-tl-vis Habermas would be that, if that

were what we felt, it would tend to cause us to view the appropri­ ateness of even thinking, much less acting, in the ways Habermas is recommending, in a new light. For example, in contrast to the implicit dichotomy in 7', one would probably actually feel no burden at all to the extent that it would tend to seem easy, in other words, one would tend to feel happy to get him the glass of water. As a kind of confirmation of this, it is probably true that if the professor knew that someone's response to his request for a mere glass of water was to begin reflecting on whether or not the professor had the right to treat him as an employee he might almost take it as evidence that the person did not find his seminar at all worthwhile. Similarly, turn­ ing to 7", if one's basic sense, as it would be if one found the seminar justified, is that he is deserving of something, it could begin to seem highly irrational even to begin to scrutinise his motivation too closely. Thus, it seems somehow utterly inconsis­ tent with the experience that one is actively benefiting from a seminar that, if the main figure in the seminar suddenly asked one for a glass of water, the rational reaction would be to start con­ sidering whether he might only be doing it in order to put one in a bad light. Furthermore, if one thinks the seminar is worthwhile, to return to a point mentioned above in another context, it seems unwarranted to assume, as does Habermas, that even if the

44

Habermas, Lyotard and the Concept of Justice

professor is not in fact all that thirsty, being the person who gets him a drink would necessarily have elements of putting one in a bad light. It might not even be too far-fetched here, assuming a very worthwhile seminar, to think of being the one who gets him the drink as more basking in his reflected glory than necessarily entering a bad light. Finally, turning to 7"' issues, a simple way to put the major difference which could come from thinking of the seminar as justified, as worth having, is that, whatever the specific outcome that might occur with regard to the request for a glass of water, it would manage to avoid what was perhaps the most irrational thing we found in Habermas. This was his apparent need to judge the viability of the request by whether one could get back before the end of the seminar, which somehow managed to simultaneously undervalue and overvalue the seminar; his method undervalued it by affirmative responses to casual requests which had the effect of unintentionally suggesting that the seminar participant, by his apparent willingness to miss almost the entire seminar, had no interest in the actual content of the event and it overvalued it by negative responses to serious requests which seemed to indicate that the existence and even the timing of the seminar must take precedence over even a desperate request for a drink. In more detail, firstly, if the seminar participant could actually feel he is benefiting from the event, he should at least be less willing than Habermas's actor appears to be to miss virtually all of it. So, the commitment to it which could come from seeing what it is requir­ ing as extraordinary and justified could avoid the irrational out­ come of the seminar participant agreeing in overhasty fashion to requests that even the professor himself would be prepared to admit are not worth being fulfilled. At the same time, though this result would seem to imply that seeing the event as justified might actually make it more difficult to avoid the other major irrational outcome, namely not even trying to get the desperate professor a drink because if one did so one might miss the seminar, part of the seminar participant seeing the seminar as justified would surely be that he would have at least a relatively specific sense of what is making the thing as worthwhile as he thinks it is. The consequence of possessing this understanding would be that his commitment to the existence of the seminar would not be so absurdly absolute as the one with which Habermas's actor appears to be stuck. That is, if he were committed to the worthwhileness of the seminar, that

Habermas

45

would enable him to be much more attentive to what the thing might and might not require so, even as he would be less inclined (than Habermas's actor) to seem to need to volunteer when to do so would really be gratuitous, he would simultaneously be more inclined to sense the need when there really is one. The con­ sequence would be that he would neither say yes ludicrously as in 'Yes. I could get back just before the end', or no ludicrously as in (to a fainting professor) 'But if I got you water I would miss your seminar.' However, though it is now clear that if one thinks the seminar is justified, that will transform 7"', 7", and 7' issues, it is not yet dear how by orienting to this question one is going to, as we were hoping, lessen possibilities of exploitation by the powerful. Thus, all but one of the assessments of the request which we have imagined to follow from the basic conclusion that the seminar is justified would make it much more likely than would Habermas' s method that the professor is actually going to get the water.5 We can still pursue the question of whether beginning to address issues of justification is going to have the positive effect of lessen­ ing the potential for exploitation by the powerful, though, by considering how, if at all, Habermas-type questions will be trans­ formed if one does not think the seminar is justified. We now need to imagine, in effect, the opposite case where a perhaps especially eminent figure, with no excuses, performs in ways which make one feel bound to say, amount to downright incompetence. This would be a case when, as of course is often said about such events, one's honest reaction is that the whole thing was a complete waste of time. With this sort of scenario, it is interesting that, were the professor, i.e. the perpetrator of the very bad seminar, to ask one for a glass of water, Habermas's three noes might seem just as inappropriate but now not because they are not good enough but because they do not seem bad enough. In this sort of case, one might certainly at least want to say no irrespective

ofhow far away the water was, even if one had few doubts as to whether he was thirsty, and even if one did not feel that the norms had been breached as to who it was correct for him to ask. Furthermore, if the seminar were really bad enough, some seminar participants might at least dream of responding to the professor's request by inventing some­ thing that is completely lacking in Habermas's repertoire, some more active form of resistance. Indeed, if it were really an abysmal performance, at least some seminar participants might at least

46

Habermas, Lyotard and lite Concept of Justice

dream of responding to the request by presenting him with some­ thing more like a plate of mud than a glass of water. What we are suggesting here, then, is that the sense in which considering whether the seminar is justified could help with issues of potential exploitation by those with power is that, while it is true that if one did believe the seminar was justified, one would be very inclined to get the professor a drink, it is also true that if one really did not see the justification for the seminar, one could feel justified in developing much more active forms of resistance than anything envisioned by Habermas. This example points to several clear differences between the method being proposed here and what we found to be character­ istic of Habermas' s approach. First, it is evident from the example that the whole idea we are now beginning to develop could never lead one rationally to expect immunity from criticism. However, as we shall argue in detail in subsequent chapters, that does not imply that we are thereby left with

no

conceivable rational stan­

dards, no way for anyone to ever decide whether, say, at least dreaming of resisting power in the way just suggested could be rational or not. What we will suggest is that there are possibilities for such assessment by considering the issue of when a given response is warranted by the event and when it is not. In other words, one can attempt to be rational, even if one's actions could never be constructed as inevitable, as what, in the Habermas sense anything a rational person simply has to do, by attempting to argue that events can justify what one does. A second point at least begins to suggest a possible advantage of this approach. One thing that could be said about resisting unwar­ ranted power in the way just recommended is that, unlike what we discovered as a possible problem in Habermas, it would at any rate be clear that what one was doing

was

challenging someone's

authority. Some more active form of resistance could at least serve to register the resistance, whereas 'No. I could not get back before the end of the session' could be faulted as lacking the courage of its own convictions and therefore falling between two stools, neither managing a very sensible response to the immediate request nor managing to be a very articulate version of what (we suspect) is the actual purpose of the sentence, challenging the conventions ac­ cording to which authority figures are automatically entitled to various fringe benefits. Thirdly, there is a difference of method to which our results

Habermas

47

point. Habermas tends to think that the only way to ensure that one will not be exploited by the powerful is to put oneself into a position where they simply would be unable to force or manipulate one any more. Hence, as we said, 'No. I could not get back before the end' at least offers the promise of being a mode of refusal that would seem to leave even the most powerful person in a position where he would appear to simply have to accept that the request is not on. What is interesting about our example is that by not being so intent on just being certain that the powerful person cannot dictate to one, in other words by leaving oneself, in a sense, more open to being manipulated by him, it seems that, instead of just the further exploitation that Habermas would expect, new and more powerful forms of resistance can instead emerge. For example, instead of hoping to avoid all force, one could accept that it is inherent in the whole idea of power that whoever has it, though they will not necessarily be using physical force, they will in some sense still be coercing other people. So, here, a set of coercive requirements, listening, etc. are unavoidable features of seminar attendance. The question is not then how to avoid them but how to justify and/or resist them. Thus, think here of the inappropriateness of a professor attempting to excuse his perfor­ mance at his seminar by saying, 'Oh well, no one forced you to attend.' What we are basically saying is that, in seeing that one is being manipulated, one can expect more, and, further, more can sometimes be justified in the way of one's responses. Thus, even if it continues to be highly controversial, surely it is right that even presenting a plate of mud to a professor becomes more justifiable to the extent that, instead of trying to explain to the professor why he cannot make you get him a drink, one instead seeks to explain all he is making you do: attend his (in the relevant example appalling) seminar, compound that by then asking even more of you (the drink), etc. The key difference here can be expressed in terms of two con­ trasting attitudes to the problem of power. Habermas is probably assuming that what is really rational is to minimise power, that is to seek, as far as possible, to limit the extent to which any one person forces or coerces other people.• We seem more to be suggesting that it may not actually be rational to even hope that one could ever eliminate power in the sense of extraordinary requirements because these extraordinary requirements can pro­ duce positive, desirable outcomes. However, there is still a rational

48

Habermas, Lyotard and the Concept of Justice

question that can always be asked about these, namely: are the requirements justified? Or, to put it from the point of view of the person who is setting the requirements, is he really deserving of whatever power he has and, if not, what does he deserve? It is interesting that, in spite of all his questions, Habermas never seems to get to the question of whether the professor in any positive sense actually deserves a drink. It is all a matter of whether it happens to be physically available, whether he happens to be thirsty, and whether the norms would happen to allow it. There are no intimations, for example, of when it might be rational, given the merits of the case, for people to at least make an effort to resist all these and other circumstances. This surprising lack of focus on the merits of the case is a reflection of a bias in Habermas (and we would say other contemporary theorists of power as well: see the next chapter, on Lyotard). They seem to feel certain that they have produced a rational response merely by ensuring that the professor, for example, has not used too much force. This tends to ignore another way in which arbitrary out­ comes can occur which can be blamed on unjust power: if someone is in a powerful position when they do not really deserve to be, then, even without the use of force, the sheer fringe benefits of their position will lead to unjust outcomes. Given this, we can conclude that a fully rational response to power would have to be oriented to at least two potential forms of the unjust exercise of power. There certainly is, as Habermas appreciates, the problem of the arbitrary use of force. One thing we have suggested, with regard to this, is that there may be better ways to fight this than the ways imagined by Habermas. However, in addition to this, there is also what could be called accidental power, persons who have power not necessarily because they have or are imposing their will on others but merely because fortuitous circumstances have, for no positive reason, given it to them. The latter sort of case can only be rationally assessed if we begin to consider questions of what is and is not justified or deserved. This latter question will particularly exercise us in the chapters that follow.

2 Lyotard The conclusion of Chapter

1

is that the suggested alternative to

even attempting to consider whether the professor is objectively entitled to a drink, whether he is 'really' thirsty, etc., is to instead reflect on whether his performance at the seminar justifies a drink. In general, then, we are proposing substituting for Habermas' s interest in searching for what it would in various senses be correct to do, searching instead for what it would be just to do. However, reorienting the problem in this way, away from, at least according to certain definitions, an interest in truth and, even by our own admission, away from a criterion which would even lead to the rational hope of universal agreement, raises a question. In aban­ doning an interest in objective truth, how are we not just aban­ doning

any

rational standard? That is, how is an interest in

seminars that will deserve or justify drinks different from being prepared to do whatever wlll enable one to be successful in obtain­ ing a drink? In other words, will a method designed to liberate us from impossible standards for deciding what is right, good to do, etc. just lead to a total corruption of standards so that we would come to identify even something like a good seminar with one which enabled the professor to gain some immediate desire? The question, then, is, if we are now clear that deserving a drink is a different issue from being objectively entitled to one, particularly because the issue of what one deserves is partly contingent on performance, how, if at all, is the issue of deserving something also a different matter from doing whatever seems most likely to maximise one's chances of getting the thing? The most relevant interlocutor for pursuing this question would clearly be, not Habermas, but his most articulate current op­ ponent, Lyotard. For those unfamiliar with his work, we begin with a brief additional summary of his approach, as it bears on our developing concerns. 49

50

Habermas, Lyotard and the Concept of Justice

Lyotard is much more sceptical about the real accomplishments of the scientific method than is Habermas. Lyotard suggests, by reraising the nowadays-familiar critique of positivism, that the scientific criterion for proving the truth of a statement has never really been attained. In his version of this critique, he uses as an example the statement: Copernicus states that the path of the planets is circular. Obviously, the strongest claims of science depend on the ability to prove this statement but: Since (the proof) can only be known through statements of the same order as that of Copernicus, the rule of adequation be­ comes problematical. What I say is true because I prove that it is - but what proof is there that my proof is true?1 That is, in the end, we are left, not with what science hoped for, some decisive proof that 'reality is the way I say it is' but at best the much weaker criterion that: 'as long as I can produce proof, it is permissible to think that reality is the way I say it is'. 2 So, Lyotard would say that Habermas's method is much too naively positiv­ istic. Habermas would still be suffering from the futility of hoping that there is some way to prove once and for all that the professor is entitled to the drink, whereas Lyotard would, much more realistically he would say, be facing the fact that of course the professor will be able to provide evidence of his needing or want­ ing a drink but, also of course, that will not prove anything. However, it is not possible, at least in Lyotard's view, to ac­ knowledge this failure of science without also seeing how it will (and already is) revolutionising criteria for what constitutes know­ ing something, e.g. knowing that a professor deserves a drink: I have already made the point that the question of proof is problematical since proof needs to be proven. One can begin by publishing a description of how the proof was obtained, so other scientists can check the result by repeating the same process. But the fact still has to be observed in order to stand proven. What constitutes a scientific observation? A fact that has been regis­ tered by an eye, an ear, a sense organ? Senses are deceptive and their range and powers of discrimination are limited. This is where technology comes in. Technical devices . . . follow a principle, and it is the principle of optimal performance: maximizing output (the information or modification obtained)

Lyotard

51

and m1mm1Zmg input (the energy expended in the process). Technology is therefore a game pertaining not to the true, the just, or the beautiful, etc. but to efficiency: a technical 'move' is 'good' when it does better and/or expends less energy than another.3 Lyotard is saying, then, that since technology, with its 'principle of optimal performance' maximising output and minimising input, is the best way to find the most proof, the failure of positivism, i.e. the inability to prove the proof, has led to abandoning traditional criteria (the true, the just, the beautiful) in favour of efficiency or performativity. Thus: The production of proof, which is in principle only part of an argumentation process designed to win agreement from the addressees of scientific messages, thus falls under the control of another language game, in which the goal is no longer truth, but performativity- that is, the best possible input/output equation. 4 However, why will this new mode cause us to abandon the traditional criteria of truth

et al.?

At first glance, it is prevented from doing so by the traditional distinction between force and right, between force and wisdom ­ in other words, between what is strong, what is just, and what is true . . . . But the fact remains that since performativity increases the ability to produce proof, it also increases the ability to be right: the technical criterion, introduced on a massive scale into scien­ tific knowledge, cannot fail to influence the truth criterion. The same has been said of the relationship between justice and performance: the probability that an order would be pronounced just was said to increase with its chances of being implemented which would in turn increase with the performance capability of the prescriber. 5 This revolution in criteria could potentially be applied to the professor example since, though the professor is obviously not, in the example, literally using high technology, still there could be a strong similarity in that we appear to be recommending shifting from even expecting to determine whether he is 'really' entitled to

52

Habermas, Lyotard and the Concept of Justice

the drink toward judging his entitlement in terms of an adequate seminar. The problem would then be how in so doing we will not just eventually get to the point where the goal is no longer truth but 'the best possible input/output equation' which in terms of the example would be a seminar in which the professor's sole aim would be to do the minimum necessary in order to obtain what­ ever potential rewards were on offer or, even, where a good seminar would be redefined as one in which one somehow man­ aged to do whatever was necessary to persuade someone to get one a drink. The issues are complex at this stage. One point, relevant to the summary of Lyotard's thought, is whether he personally approves of the 'performative' criteria that he sees emerging in the world. As is explained below, he does not. However, perhaps the more pressing issue is whether, in terms of the work already done in the previous chapter, it would be adequate to suggest that what is being advocated here actually is the performative criterion just elucidated. Against this potential image of where this work might be head­ ing, we can, as a start, explore certain differences between the idea of deserving something because of what one did and the sort of performative criterion depicted by Lyotard. An interesting truth is that it somehow takes some of the force out of the conclusion that, to return to the example, a professor deserves a drink because of his seminar, if all that was meant was that what he did was sufficient to attain that end. Thus, it would be the case that, in normal usage, if we imagine a professor giving a very successful seminar and then requesting a glass of water, a typically enthusias­ tic seminar participant might say something like: 'Oh, I think we could manage that.' This would be trying to say that, though what he has done certainly merits a drink, it is also the case that, if that is all that is given to him, there would actually be a gross discrepancy between what his performance will, in fact, be earning him, and what he ought to have. In this example, the actors would clearly be using the idea of justice not, as we feared above, to identify the adequate seminar with its circumstantial accomplishments (here, managing to obtain a glass of water), but instead precisely to resist any such identification. Furthermore, if we look in the last chapter for a case when at least some people would be prepared to say that the outcome is at least potentially as close as possible to anything that someone

Lyotard

53

could deserve, in other words when there is at least a potential outcome/performance fit, that would have to be the case when a badly performing professor would be presented with a dish of mud. If that is right, what is interesting is that it suggests, again, that to be interested in justice cannot just be, as we feared, to only be interested in what does and does not succeed. If this were all the interest in justice amounted to, it would clearly be sufficient merely to register that, in this instance, the professor has failed to attain this success criterion rather than to go so far as to actually present him with the mud. The sense of justice here seems to require that besides being attentive to his failure, we have to move on to consider what, even as he fails, he

does deserve.

If justice is some such serious interest in what different inputs really deserve, we can also suggest, again in a preliminary way, how it might represent a kind of solution to some of the problems following in the wake of the failure of positivism, which are concerning Lyotard. If it is not possible to prove that something, e.g. a glass of water, a seminar, etc. is really required, we might experience a potential permanent paralysis as to how we could ever with any confidence proceed to act. Perhaps, for example, it is nervousness about this problem that is partly responsible for Habermas's search for

some

definite criterion. One way of ration­

ally going ahead with the thing anyway in the absence of any such guarantee is by having the opportunity of further or even continu­ ous reflection on what might be justified insofar as one accepts the requirement for the seminar, the glass of water, etc. In other words, one great insight of an interest in justice might be that, with such an interest, one need

not conclude from the fact that there is

no proof that something is required that therefore it is automati­ cally wrong to ever require it. Instead it can mean that one cer­ tainly can require it but, insofar as one does, one ought to recognise that one is committing oneself to a different sort of claim than the claim that something is simply unavoidable. One is saying that what one requires is what one deserves. In other words, we can require what we cannot prove the need for but, in so doing, we ought to expect to have to prove worthy of whatever we do require. The idea that something is justified, then, is the idea that there is a need for it in the sense that it is worth having. This is a major departure from the whole viewpoint of scientific-style methods for proving the need for anything in that it is difficult to see how if one

54

Habermas, Lyotard and the Concept of Justice

could ever definitely prove that there is a need for something, the notion of claiming it is worth having would ever even arise. Or, to put it negatively, it is much easier to see how the notion of justifying something would arise if it is at least possible to get rid of it: that we ought to demonstrate the worth, even constantly, of seminars, seems more rational than that we ought to constantly demonstrate the worth of something that it would be much harder to avoid having. So, if one cannot prove that there is a requirement for something, one thing which that would dearly seem to indicate is that we could, i.e. it is within our power to, get rid of it and, though some (e.g. Lyotard, see below) might see that as indicating that we should get rid of it, another way to see it is that only if we could get rid of it can we rationally begin to reflect on whether it is worth having. This is the difference between thinking exclusively scientifically (i.e. if we cannot prove it is necessary, therefore it is not necessary), versus appreciating on the basis of the fact that we cannot prove it necessary that therefore we have the opportunity to reflect on whether it is necessary, i.e. justified. Reflection on what is justified in this sense, then, obviously offers an alternative to even trying to find a scientifically valid definite proof that something must be there. In that sense, as we have already suggested, it provides a potential alternative to Habermas. However, we are also at least beginning to suggest that such reflection is different from what we see, following Lyotard, is the most obvious alternative to traditional-style proof of a need, namely the modern identification of what is required with what­ ever is circumstantially effective. Most basically, it probably offers an alternative to this as well because while it is certainly difficult to imagine someone rationally bothering to say something is worth having if there is no way to abolish it, it is equally the case that if something is worth having, it would not be rational merely to be, say, happy whenever the thing just happened to occur via the random workings of chance. Instead of depending on chance, rationality surely would reside more in practices like cultivating it even when it would not have appeared by chance, also doing more than just passively welcoming it, e.g. nurturing it when it did appear by chance, and, especially, at least attempting to resist anything circumstantial that either stopped it from appearing at all, or would cause its destruction when and if it did happen to be there. That is, if we do consider something worth having then, in addition to it actually being irrational to expend much energy

Lyotard

55

proving that in a scientific sense it must be there, it would also be rational to be interested in how one might at least help to produce the thing. Performative, circumstantial criteria would then most basically be inadequate from the perspective of an interest in what deserves to be because they would seem to take their bearings too much from whatever happens to be there, e.g. existing success criteria. To relate this notion to our example, if we can recognise presenting the professor with a dish of mud as the act of someone with at least an interest in justice, we could see how in order to act in such a way one would have to be interested in not at least completely limiting oneself to what happens to be circumstantially available. A dish of mud, almost by definition, would have to be produced in a way that, say, something like applause would not.6 Indeed, going further than only saying that the idea of justice furnishes a potential alternative once one abandons the hope of positivistically proving the need for anything that one would really wish to claim there is a need for, it might also be suggested that once one acknowledges the rationality of actually working to produce anything that one would seriously believe is worth requiring, one sees an additional sense in which an interest in what is just could aid in reflection. If an actor is knowingly working to produce things as, we argue, an actor with a sense that at least some things are actually worth having ought to be, clearly, the typical scientific question, namely: Is the thing there?, would not get him very far. But what he really might need to know is

whether he is producing something. In other words, the issue might not be whether it is there but there might still be an issue for reflection, namely something of the order of: given that one is working to produce and given that at least something is clearly there, is what is there just an accident or has one produced it? If we further appreciate that we might need a mechanism for being able to recognise or at least reflect on issues like some of one's unin­ tended products, e.g. a dish of mud, then, an interest in what is just in the sense of what is not only there but what one deserves, i.e. not just there by accident, could represent almost an objective interest. It could represent an objective interest in one's self in the sense of what one is producing. That is, seeing what is just and what is unjust in a sense like what one deserves and what one does not deserve could help the active, productive actor to be objective about himself by enabling him to distinguish between circum­ stances which are visited upon him, and those which he creates.

56

Habermas, Lyotard and the Concept of Justice As we are developing it here, to be interested in justice might

not just be different from Habermas' s interests, especially because of the much more creative, less sheerly observational role we are assigning to the actor, and different from the postmodern per­ formative actor described by Lyotard, especially because we at­ tempt to distinguish circumstantial outcomes from deserved outcomes. It might also be different from the proposed alternative to both Habermas and performative criteria offered by Lyotard himself. Thus far, our exposition of Lyotard has only gone as far as a summary of his description of how he thinks performative, circumstantial criteria are coming to replace traditional, Haber­ mas-style objective criteria. The further important issue for under­ standing his work, however, is gaining a sense of and then evaluating the alternative to both performativity and Habermas which is his positive proposal. In the following passage, Lyotard is discussing Habermas's attempts to resist performative criteria, the latter being associated with the work of Luhmann: Diskurs is his (Habermas's) ultimate weapon against the theory of the stable system (Luhmann). The cause is good, but the argument is not. Consensus has become an outmoded and suspect value. But justice as a value is neither outmoded nor suspect. We must thus arrive at an idea and practice of justice that is not linked to that of consensus. A recognition of the heteromorphous nature of language games is a first step in that direction. This obviously implies a renunciation of terror, which assumes that they are isomorphic and tries to make them so. The second step is the principle that any consensus on the rules defining a game and the 'moves' playable within it

must be local, in other words, agreed on by its

present players and subject to eventual cancellation . . . . This orientation corresponds to the course that the evolution of social interaction is currently taking: the temporary contract is in practice supplanting permanent institutions in the profes­ sional, emotional, sexual, cultural, family, and international domains . . . . 7 Lyotard is saying here that what unites him and Habermas against Luhmann is at least an interest in justice. This conclusion is in line with our results so far as well: anyone who would be basically happy, as is Luhmann, with 'that an order would be pronounced just was said to increase with its chances of being

Lyotard

57

implemented' would be interested in circumstantial outcomes ir­ respective of whether or not they could be said to be just out­ comes. At the same time, Lyotard's problem with Habermas is that Habermas's alternative to Luhmann, his way of resisting perform­ ativity in favour of j ustice, depends on 'consensus (which) has become an outmoded and suspect value'. This conclusion about Habermas roughly corresponds with what we have been saying, that Habermas' s hope for a scientifically valid version of what would be just is misconceived. But what we have not discussed yet is Lyotard's attempted solution to the problem. This is expressed in the passage as the aspiration to still be interested in justice 'as a value' but with the apparent need to 'renounce terror' in so doing, terror here being given the very broad definition of any failure to accept the 'heteromorphous nature of language games'. His posi­ tive version of what justice would then amount to is in the next sentence: 'that any consensus must be local, agreed on by present players and subject to eventual cancellation' . Here we have, in effect, a new way to define justice. Clearly, the question we must address concerning it is whether it is possible for such an actor to have the interest in producing what he deserves that we above identified with the idea of justice. At the same time, even before we begin the detailed assessment of Lyotard's concept of justice, we can entertain at least the suspicion that his conception will

not

show any interest in the idea of justice as what would be deserved. The basic reason for anticipating such a failing is that it is not really possible to think of justice in this way without paying great attention to justice as a particular cognitive idea rather than just, as he puts it here, as a 'value' by which he means something like a worthy goal. Another way to demonstrate this point is that when Lyotard here says that justice 'is' a value but that we must 'arrive' at its idea and practice, he would seem to be virtually admitting, particularly once it is appreciated that he is saying this on the penultimate page of his book, i.e. he is not going to get to the idea at least in this work, that his concept of justice owes little or nothing to any reflection on what the actual idea of justice might be.

II However, we begin our work on his conception by temporarily suspending the question of how it might relate to any possible conception of justice in favour of a careful explication of the actual

58

Habermas, Lyotard and the Concept of Justice

behavioural practice he is recommending, namely a local consen­ sus agreed on by present players and subject to eventual cancel­ lation. Initially, we can briefly continue to use the seminar example to focus the discussion. At first it seems that all that is being proposed is the surely unobjectionable idea that not just the professor but also all the seminar participants be able to agree to attend the seminar, that is that no one actually be forced to attend. However, this limited version of his proposal does not fit with the idea that the whole thing must be subject to eventual cancellation. This must mean that he is saying that, no matter what individuals voluntarily agree to, he thinks they ought to be free to cancel the agreement, in other words, to simply leave if that is what they wish to do. So, the first clearly radical aspect of Lyotard's proposal, as it would apply to the example, is that he is suggesting not just that people not be forced to attend seminars but that they also be free to leave them whenever they want. At this point, we might ask in what if any sense there is even a potential contract here? In other words, exactly what has been 'agreed on by its present players'? Or, to put it another way, what is the basis of the so-called consensus if anyone is free to just leave? It is not that Lyotard is unable to answer these questions, as we shall see, but what we shall also see is that the answer he would give shows that his actual proposal is even more radical than we have thus far explained. Basically, if the present players have not even agreed to stay until the thing is over, the only conceivable thing that they could be agreeing on is the kind of thing it ought to be in the first place. This version of Lyotard obviously fits with the other aspect of the idea of a local contract, namely that in addition to his stipulation that it should be subject to eventual cancellation, he also stipulates that 'any consensus on the rules defining a game and the "moves" playable within it must be agreed upon by its present players'. In other words, besides allowing anyone to leave the seminar, he also wants everyone, including but certainly not just the professor, to discuss whether there should even be some­ thing like a seminar. For example, to take a fairly moderate example of what he has in mind, he would deny that there should be a formal seminar if, say, it transpires that most people there would actually initially prefer a less hierarchical form of discussion in which the professor's role would not be such a highly differen­ tiated one. In short, what he is really saying is that, besides being free to leave the seminar, we ought also to rid ourselves of the

Lyotard

59

expectation that there is even necessarily going to be a seminar, replacing this expectation with a much more free-floating open­ ness to be willing to organise whatever might be most appropriate to the current needs and desires of whoever happens to be pre­ sent. And, if we would then ask why, if the whole thing is going to be this open initially, anyone would ever have to cancel the agreement, Lyotard's reasonable (given his basic premises) answer would be that, as these initial needs and/or desires may change or, more strongly cannot even be

expected

not to change, it seems

wrong to hold people to them. How do Lyotard's ideas, as we have articulated them thus far, relate to Habermas's? In general, we started with the idea that Habermas thought it rational to pursue immunity from criticism. When Lyotard suggests that 'consensus has become an outmoded and suspect value', as we suggested, it sounds as if he is agreeing with us that the idea of any universal consensus, that is total immunity from criticism, is irrational. However, that of course stiii leaves the question: if it is not rational to expect everyone to agree with one, what would be rational? One obvious alternative, Lyo­ tard's we suspect, is to never actually expect anyone to necessarily agree with one about anything. At first, though, it seems highly problematic to identify this as his idea because the major positive proposal that he offers us, local contracts, is clearly nothing other than an agreement between people. However, our problems here can be overcome by seeing the difference between actually expecting people to agree about something (Habermas as Lyotard sees him) and something more like never actually expecting anything but still, of course, being open to agreements when and if and for as long as they could be maintained (Lyotard as he sees himself). That is, Habermas is still expecting people to be able to agree about something, e.g. that someone needs a drink, that there needs to be a seminar, and, in keeping with such expectations, if they should fail to agree, Haber­ mas believes it must be because at least one of them is irrational. Lyotard has no such expectations or, as he would see them, illusions. But this does not necessarily mean that he thinks that no one would or could ever agree with anyone else about anything. The point is that it is irrational to expect agreements but this certainly does not preclude them. In other words, if people could agree, that would be fine. In terms of the example, it is not rational to expect a seminar participant to agree with the professor that,

60

Habermas, Lyotard and the Concept of Justice

say, the professor's need for a drink is rational because of the water tap's physical distance away. Furthermore, the stronger point is that not having such naive expectations of agreement would actu­ ally facilitate agreement. How so? The general idea here would be that if people would stop expecting that there are things they really should agree about, whether someone's need for water or the need for a formal seminar, they would be stimulated to work out mutually beneficial arrangements. For example, if the professor would stop expecting the seminar participant to develop some shared, fundamental sense that it is 'right' for him to have a drink, Lyotard believes much more rational agreements would be likely to emerge between them. So, perhaps, the seminar participant could, if he wants, agree to furnish the professor with water while the professor, if he wants, could, in a quid pro quo, agree to furnish a seminar which would perhaps be more to the liking of the seminar participant. And when these arrangements no longer suited one or both of them, either can just break them, i.e. leave. Now, if we attempted to reflect on how Lyotard might argue that arrangements of this ilk could be an indication of justice, the answer would be that, to him, justice, as we suggested in the Introduction, must be something like being as certain as possible that no one is forcing anyone else to do anything against their will. Expressing it as a rebuttal of Habermas (which it is, at least in part), Lyotard is saying: Why does the just outcome have to be some­ thing that every rational person would agree to? This is a utopian hope at best and, furthermore, arguably even hoping others would agree with one could amount to an arbitrary (unjust) imposition. Why would it, instead, not be enough to be sure we have the voluntary agreement of those with whom we are doing whatever we are doing? Why, instead of making them say it is right (which he thinks would always really amount to forcing one's views on them), not be content if they willingly go along with it? justice, then, consists in working to make sure that everyone does agree or, if they do not, making it absolutely permissible for those who do not agree, as soon as they do not agree, to leave. Justice is no one requiring or imposing anything, even just Habermas's hope for agreement about what is right, on anyone. However, as we have already done considerable work on both the idea of justice (as what is deserved) and the functions of that idea (especially how it helps the would-be productive actor to identify his products), we must now consider how Lyotard's

Lyotard

61

solution might affect the use of justice as the working concept we are corning to see it as. Firstly, considering the perspective of the professor, a glaring problem is that if he is in the situation depicted above as being consistent with an interest in the justice of his having a seminar, that is to say the situation of really thinking that he does require the seminar, that it is worth having, that he would even work to produce it, etc., then it is certainly not going to be an adequate solution from his point of view to have to get a consensus on this before he can even begin. The deep problem here is inherent in the idea of anyone ever thinking, no matter how wrongly, that they really

require

something: if that is what they

really think, it is hard to see how they could ever rationally change their mind just on the basis that it was difficult to obtain a consen­ sus about this before they even began. For example, if a professor really believed that he needed, i.e. required, forty-five minutes to develop his thoughts, it would not really be rational for him to reassess this at least until he had some opportunity to assess how his talk was going, which obviously means that he really ought not to shift on this at least until his talk was well under way. Of course, Lyotard's concern about this would be that, given the message we ought to have assimilated from the failure of positiv­ ism, namely that he cannot actually prove the requirement in advance, though the professor may think a forty-five minute talk is required, what is to protect the rest of those present from having his possibly merely idiosyncratic sense of what is required inflicted on them? Are they not being just forced into something against their will? To answer this question, we need to begin to develop some of the additional mechanisms that at least could be at work when, say a professor, without submitting his requirements to discussion, simply requires that others listen to him for forty-five minutes, insofar as something like an

idea of justice in the sense of

the perception that if one does require something, one is expected to

justify

it, is at work. Lyotard is concerned that, though the

professor may think it is required, no one else might agree, even after the forty-five minutes are up. This is true enough, but what it overlooks is that, if the professor is at all rational, no matter how erroneous (in most people's eyes) his belief that he needs forty-five minutes might be, he is at least likely to appreciate that he actually

is requiring something of other people.

In other words, the implicit

choice in Lyotard between requiring something and not requiring anything overlooks a third possibility: requiring something but at

Habermas, Lyotard and the Concept of Justice

62

least knowing that one

is

requiring it. The difference this could

make is that, in that the professor is, as it were knowingly imposing himself on other people, while it remains true that the others may be staying there against their will, it is also true that it is certainly part of the whole picture that they have a right to expect something by virtue of what could now be expressed as a sort of involuntary commitment on their part. This is reflected in the fact that, for example, if the seminar turns out not to have been to one's liking, though one may not be able to leave for forty-five minutes, after that one actually has many

more

options than just going away.

Thus, even in very conventional seminars, so long as one has an interest in issues of justification uppermost in one's mind, one can certainly ask professors

why they needed forty-five minutes to say

whatever they said. The general idea here is simply that once we appreciate that an actor, e.g. the professor, if he is aware that he cannot scientifically demonstrate the need for what he is requiring, ought to be aware that he is producing a situation in which people will be expected to listen to him for forty-five minutes; we can simultaneously appreciate that he and everyone else could expect this recognition to affect everyone's sense of what is required of

him,

e.g. to respond to hostile questions, and so on. Thus, a strategic way to see the point here is to appreciate that actually the

more the professor was to require of people without actually having asked for their consent, the more the other people at least deserve the opportunity to ask in the strong sense, i.e.

require

things of

him. In a way, then, the difference here is between a system where no one requires anything of anyone, where, in other words, everyone is free to come and go as they please versus a system where, though it is true that some people are requiring things of others,

making other people attend to them as it were,

it is also true

that by so doing, they expose themselves, probably much more than people who require less, to questions of justice, questions of whether they deserve what they require and also, more basically, questions of what they deserve, e.g. hostile questions, dishes of mud, given that they are obviously requiring at least something.

The most surprising aspect of what we are concluding now, from Lyotard's point of view, would be that, in not just going away when, we could imagine, he might first feel the impulse, the seminar participant does not just give the chance. He also ends up giving

himself much

professor

more of a

more of a chance in

the sense that what does initially appear to be only a take-it-or-

Lyotard

63

leave-it situation eventually becomes something he does not just have to take, i.e. merely passively endure, even though he does not leave. The idea here is again derived from reflecting on con­ siderations of justice in that the notion is that,

via

how much has

been recognisably required of him, the actor comes to really de­ serve something, e.g. a chance to speak. It is interesting at this point to consider whether Lyotard's method, though it was obviously designed with the aim of leaving actors free to do what they like, would actually permit or encour­ age even the minimal questioning which, we are suggesting, is what justice would dictate ought to happen after the typical pro­ fessorial seminar. Lyotard's way of ensuring that the opportunity to question would occur in the seminar would presumably be by negotiating this right into the original local contract. With regard to a related issue, at one point in his book, he asks: 'Can you tell stories in a cabinet meeting?' and then answers: 'Yes, i f the cabinet works with prospective scenarios. '8 By analogy, one could ask questions at a seminar if it had been agreed that it was to be the kind of seminar at which questioning was encouraged. Assuming that such an arrangement was part of the agreement, though this would obviously tend to make at least some questioning of the professor likely with Lyotard's system, the drawback would be that it would tend to make the questioning more automatic, that is not so contingent on whether anyone actually thinks a question is justified! So, again, we get the finding that, if it has not been agreed in advance that something will happen, it can happen anyway and, importantly, we suspect it will happen in a poten­ tially much more thoroughgoing fashion, e.g. real questions, if it is allowed to happen when and if it is thought to deserve to happen. The problem with Lyotard's idea of voluntary contracts as to what can happen is that it makes no place for even attempting to reflect on what

deserves

to happen at any given time, probably basically

because that can never be fully worked out in advance, nor can it be addressed, if actors have as their preferred option whenever they find themselves in disagreement with the ongoing course of events, simply to leave. This, in turn, could be suggestive for further developing our continuing theme of how an interest in justice could be beneficial to an actor who is working to produce. In general, it would not be right to identify this kind of productive work with another idea with which it could conceivably be confused, namely exerting total

64

Habermas, Lyotard and the Concept of Justice

control over one's circumstances. The actor could and, we would say, certainly should be able to maintain an interest in working to produce at the same time that he would not be totally in control.10 This would be a general point about human activity but it might be easier to explain it in terms of a specific case. So, for example, given the power differentials, it is certainly an obvious feature of the seminar participant's (as distinct from the professor's) current fate that he does not have all that much potential control over circumstances: realistically speaking, what is going to happen during the course of the seminar is much more likely to be dictated by the power figure than by him. The idea of justice, the idea that something can be deserved if something else can be required, can help here in that the actor's perception that he deserves something could actually help him to see how he could possibly produce it. Thus, in terms of the present case, if we can imagine a lively seminar participant listening to a long-winded professor and thinking that there is something unjust about this and that there­ fore he (the seminar participant) deserves to ask a question, an interesting feature of these ruminations is that they might enable the seminar participant to see a circumstance when he actually could speak. The interest in justice could affect how one perceives one's circumstances. The interest in justice, then, could have cognitive impact; it can affect how one will interpret one's circum­ stances. Simply put, if someone thinks they deserve something, e.g. a chance to speak, they would be far more likely to see it as arising than, say, another person who is in the identical situation but is not experiencing the same sense of injustice. This point is important because it could suggest the need for a fundamental reconsideration of the viability of Lyotard's alterna­ tive to Habermas. Obviously, on the most basic level, what Lyo­ tard is saying to Habermas is: Why do we even need to try to demonstrate a need for anything, e.g. water, to everyone's satis·· faction? Why cannot we just approach the whole question of the rationale for human activity from the other direction, not as the issue of what we could need at all, but as the question of what we could want? Why cannot we just do what we want to do and forget about the question of what we can demonstrate a need for? And to the obvious objection to this line of reasoning that, as distinct from what we might at least conceivably need, e.g. a glass of water, what we might just want would be far more likely to be a danger to other individuals, the whole social order, etc. Lyotard's retort is to

Lyotard

65

offer the additional proviso that, if nobody else wants it as well, or if they stop wanting it, they must, of course, be perfectly free to leave. Now, how could the considerations we have been developing cause us to reconsider this alternative to Habermas? The point would be that, if maintaining even a minimal interest in what one deserves enables one to see one's circumstances differently, e.g. to see more chances, more openings than one would otherwise, then surely such perception is going to have its effects on what one even

desires to do.

Thus, in terms of this example, while Lyotard is right

that, just by virtue of an interest in justice one could never defi­ nitely prove that one is literally required to leave, what still could happen is that by insisting on justice, one could come to discover whether one actually

wants to

leave. This is only to say that surely

no rational actor would desire to leave something without at least a fairly developed sense of what the thing is, and what Lyotard does not see is that, by virtue of an interest in justice, what something is could be at least potentially subject to transformation by virtue of how one relates to it: what without such an interest could look like just a momentary pause could, for example, given a strong enough sense of injustice, be transformed into the moment one had been waiting for. Obviously, if one had left when one first began to feel things were not going one's way, this moment would never arise.

lii While Lyotard is right that it is futile to search for the (or those) facts which will prove an action just, that is, make a particular action clearly, absolutely right or necessary, he is very wrong to leap from this point to abandoning all attempts to justify actions at

least partly by citing circumstances; in other words, he is wrong to leap to the idea that the only thing that matters is desire, rather than seeking to cultivate some sense that, more than someone just wanting something to happen, it would at least appear to the person who wants it as something that he thinks is justified or, in other words, something that deserves to happen. We wish now to pursue this fundamental point by turning from consideration of the representative Habermas example to what, we think, is an equally representative example from Lyotard. This text will turn out to provide further insight into the meaning, the implications,

66

Habermas, Lyotard and the Concept of Justice

the relation to Habermas, and, most basically the sense of justice that is at work in Lyotard's philosophy which, we are saying, is basically about ignoring any assessment of circumstances and so eschews any interest in what might deserve to happen, in other words what might be justifiable, in favour of the free pursuit of individual desires. In addition, we would hope that this analysis will serve to indicate, as was the case with the similar work done on Habermas, how a thinker's ideas may begin to seem much less rational once one begins to reflect on how they would actually work out in practice. Lyotard writes: There is nothing to prove that if a statement describing a real situation is true, it follows that a prescriptive statement based upon it (the effect of which will necessarily be a modification of that reality) will be just. Take, for example, a closed door. Between 'The door is closed' and 'Open the door' there is no relation of consequence as defined in propositional logic. The two statements belong to two autonomous sets of rules defining different kinds of relevance, and therefore competence. " Lyotard is here mocking Habermas for assuming, as the former would at least formulate the latter, that there is much hope of definitive factual support for even such a mundane desire as the desire to get a door opened. The only thing that could be definitely proven in this case, he would say, is the fact that the door is closed and, surely, it is futile to expect that fact to prove that it should be opened. That is, assuming at least some rationale for the existing situation, which is a rational assumption in that it would be otherwise difficult to understand the fact that the door was closed in the first place, it is hard to understand how merely announcing that fact is going to say anything one way or the other about the justness of the desire. Thus, in general, Habermas's goal of univer­ sal consensus by appeal to facts certainly seems futile here. Surely those who are not even there could not be expected, once we admit that the only definite fact is neither here nor there in terms of the just outcome, to have any basis in fact for validating or invalidating one's desire. And, probably more in keeping with Lyotard's underlying point, it is especially difficult to see why those within would think it is definitely just to open their door just because

Lyotard

67

someone tells them that it is closed since presumably they must already know it is closed because they closed it. This brings us to the question of how Lyotard's actor might respond to this situation. If we were only basing our judgement on our previous explication of his theory, our impression might be that, when faced with a closed door, Lyotard's actor would simply abandon his desire to get the door opened, the logic here being that, as this would appear to be a case when there does seem to be no initial basis for agreement, perhaps what should be done is simply to look elsewhere for someone likely to consent to one's desires. However, further reflection, even on the theory in the abstract, leads to a different conclusion. Lyotard's basic idea is that it is irrational to even expect any sort of consensus so, as applied to the example, this would mean that he would certainly think it irrational for an actor with a desire for a door to be opened to expect it to already be opened. Such an expectation would be, to him, to be holding on to the general delusion that there is some reason why one person's desire could be expected to coincide with another's. Given this, Lyotard would clearly think it would be irrational to abandon the desire to have the door opened just because it happens to be closed. In general, we already begin to see that, in practice, his theory involves the actor in much more active attempts to influence the course of events than would at first appear. His idea is less that we would simply see whether there is anything on which people are agreeing, here see if a door one wants opened is open, and more that, if we want a door opened, we should stop hoping that it already be open (his version of Habermas, again, and he would say, an obviously irrational hope), and instead see whether we can get those within to agree with us. This more active interpretation of his general thrust in favouring local agreements is confirmed by the specific example as Lyotard himself develops it. He seems to be suggesting that what would be rational for an actor confronted with a closed door would be neither to say 'The door is closed' in the hope that that would somehow magically get it opened (his version of what Habermas would do) or to go away (the more abstract version of his theory). His idea is that, when faced with this situation, the actor ought to simply state what he wants, i.e. say 'Open the door' and then, presumably, see whether those within are prepared to agree. Vis-a-vis Habermas, he would say that this procedure has the

68

Habermas, Lyotard and the Concept of Justice

advantage of making it at least conceivable that one's desire would meet with success. 'Open the door' is, he is saying, clearly more likely to be immediately successful than 'The door is closed'. Instead of, in effect, just hoping that an agreement will be there, one is, at least, seeing whether one can obtain one. And vis-d-vis would-be terrorists, e.g. Luhmann with his emphasis on success at all costs, Lyotard would argue that he is not using force, not

12 tearing down the door, indeed not even simply opening it. Instead, he would say that those within would be free to refuse to

open the door or, if we imagine how the interaction might further develop, perhaps to agree only temporarily to open the door and then later decide to cancel the temporary contract, i.e. close it again. Finally,

vis-d-vis justice,

Lyotard would see justice here in

that, at least as he would perceive what he is recommending, 13 nothing is being imposed on anyone. Those within are free to say yes or no. In other words, they can voluntarily agree or refuse. And, furthermore, they would also be free to break the contract at any point, that is, close the door again whenever they wanted. We perhaps now have a clearer idea of what Lyotard is really suggesting. However, we still need to see, as we did with Haber­ mas, how an actual attempt to practise these ideas might really work out. As a start on this issue, Lyotard is right, as he states in the quotation, that there is nothing to prove that if a door is closed, that means that it should be opened. What is much more problem­ atic, though, is that he draws from this the implication that no prescriptive significance can be drawn from a closed door. Here he is overlooking all the ways in which that which does not prove may still provide at least some indications. We can get at a few of the most basic of these indications by thinking more than does Lyotard himself about the situation with which he presents us. Three points about

his example

that he greatly underemphasises

are: 1) The door is only closed, i.e. it is true, as he does emphasise, that it is not open, but it is equally true that it is just closed, that is not locked. 2) Presumably, it has only been closed, i.e. not something more drastic such as slammed shut. 3) Most basically, he almost seems to be forgetting that what is in fact not open is a door, i.e. something whose whole design is such that closing it is never meant to foreclose the possibility that it can very easily be opened again. So, while the satire of Habermas is apt: the fact that a door is closed certainly could never be cited to justify one's desire to open

Lyotard

69

it, we could begin to wonder if Lyotard is just going to the opposite extreme, virtually ignoring the fact that a door is closed as that might be related to one's desire to get the door opened. It is a social truth that a whole series of practices have evolved for doing what we have here alluded to: expressing one's desire to get a door opened while at least not totally ignoring the fact that it is closed. If we call to mind some of these practices as we consider what Lyotard is suggesting, we might begin to see his recommendations in a new light. A first point concerns a potential change from the normal meaning of 'Open the door'. In normal current usage, if someone comes upon the fact that a door is dosed and says 'Open the door', it tends to mean more than it means to Lyotard. In addition to having the sense that he does recognise, i.e. that whoever was saying it would certainly want the door opened, it also has the additional connotation that whoever would say some­ thing like that would have at least a fairly well-developed sense that the door actually deserves to be opened. Of course, the immediate problem to be faced is how such a sense could have developed without it amounting to a contradiction of the point insisted on by Lyotard, rightly in our view, that no fact or facts could be cited to prove what is deserved, what is just. In other words, while normal usage may allow the person wishing a door to be open to have the conviction that what he wishes to happen actually deserves to happen, we must address the issue of whether or not such normal usage is just based on ignorance of Lyotard's point about the lack of definite significance for any and every fact. The philosophically valid employment of the normal usage would seem to turn on the possibility that the actor could simultaneously appreciate that his act of wanting the door open may not prove ultimately valid (thus demonstrating his awareness of Lyotard's point) while somehow still being convinced, more than just that he has some desire to do it, that instead, he has some conviction that the action is clearly justified in the circumstances. Examples might help to clarify how one could go so far as to see oneself as probably justified without at the same time making the philosophical error of assuming that there was some proof that what one was requesting was right. One typical case where 'Open the door' might normally be used in current usage would be when someone within would clearly be helped in ways that they could not themselves appreciate simply because they could not know what is going on outside the door. In this case, while it would still

70

Haberrnas, Lyotard and the Concept of Justice

be logically true that opening the door may ultimately prove counter-productive, e . g . if a seemingly very sensible plan back­ fires, 'Open the door' would certainly mean much more than the Lyotardean 'I want you to open it. Will you consent?' It means more: 'I am virtually certain you would consent if you were fully cognisant of the circumstances.' However, this example does turn on the assumption that the two individuals involved would be at least moderately likeminded so this might lead Lyotard to treat it as fundamentally naive or at least atypical in presupposing an underlying consensus between individuals. There is another sort of typical case where at least this objection would not apply. A parent faced with a child who is presumed to be doing something of which the parent would disapprove or, more dramatically, a policeman desiring entry to a room where, he believes, something suspicious is occurring, could also be expected to say something like 'Open the door' and mean by that much more than just to express their personal desire about which they would only want agreement if it were voluntary. They would instead feel justified in what they were saying. However, at first examples of this sort seem to confirm Lyotard's main point: how can it be said that the door opening in either of these cases is something that deserves to happen? Surely these are better formu­ lated as cases where, if the parent or policeman thinks the door deserves to be open then the child or suspect would think that the door deserves to be closed and, following on from this, if what deserves to be is so totally a reflection of point of view, then it would seem to be more accurate to abandon the whole idea of what is deserved, what is justifiable, in favour of reformulating it all as a simple matter of differing desires. This, of course, is exactly what Lyotard is proposing. On the other hand, in contrast to this conclusion, a point that might help here is that there would be many things that at least the self-reflective actor would be able to appreciate in some sense deserve to happen even though he might personally not want them to happen. To briefly make the argument in terms of the present examples, a self-reflective child or would-be criminal might begin with a general recognition that it is a feature of policemen and parents to want to gain access to rooms, particu­ larly when they have reason to suspect wrongdoing within them. Given this general sense, clearly if it happened that one were doing something that one could recognise as likely to raise sus-

Lyotard

71

picion and a parent or policeman happened at that moment to wish to enter one's room, one ought to be capable of recognising that their desire to get in would be more than just something they want but you do not. More than this, one ought to be able to recognise their desire as something they, in a sense, deserve to have, even though of course, achieving this recognition of the status of their desire need not stop one from still hoping that they do not get in. Perhaps, to further develop this point, we could see the two differing attitudes possible even from those who share the sense that something is happening that they personally would prefer not to happen from the vantage point of the emotion that it would be most appropriate for the self-reflective actor to feel in such a situation. One could certainly imagine such an actor feeling annoyed as in the idea: why do they have to always turn up at a time like this?, but one could not imagine such an actor feeling anger as in: How dare you infringe on my privacy? The latter emotion would only really be appropriate to the extent that, besides feeling that they have a different current desire than one, one could, in addition, muster the feeling that they do not actually deserve to be wanting whatever they are wanting. In the light of what the consideration of these two examples indicates is the current practice with regard to the expression 'Open the door', how might such practices be affected were Lyo­ tard' s alternative to be adopted? Lyotard would presumably have to argue that the current connotation of the expression, namely that the door deserves to be opened, is another example of the false hope for consensus, here taking the form of hoping that the person within would necessarily agree with the person without. His interpretation would certainly seem highly problematic with regard to the first example, where the idea would seem to be not to overlook the viewpoint of those within but to seek to take the

viewpoint of those within, in circumstances where it would be literally impossible to consult with them before one needs to act, e.g. think of the irrationality of asking someone who puts a 'Do not disturb' sign on their door whether they would wish you to disturb them if there should happen to be a fire. The underlying point here is that we are discovering that the idea of maintaining an interest in what deserves to happen (justice in that sense) is not always, as Lyotard assumes, merely a way of one person imposing their will on others. At least sometimes the interest in what deserves to happen can be an interest in protecting everyone from what they do

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not deserve, in the sense of accidents that they would avoid if they could, but, as it happens, without the intervention by someone who has some sense of what they deserve, e.g. not to die in a fire, could not actually manage to avoid. On the other hand, whereas we have so far argued against Lyotard's method by pointing to how it might rule out outcomes that would seem to be in everyone's interest, we cannot use any such straightforward argument to deal with the second sort of case. It does, at least initially, appear to make matters much worse from the viewpoint of someone in danger of being caught red­ handed in an act that whoever is saying 'Open the door' would define as malfeasance for there to be a sense the possible offender must recognise in which the door actually deserves to be open. Would it not therefore be better, at least from their point of view, were, as Lyotard is proposing, the expression to mean nothing more than just that the person without wants the door open? For example, if this were to come to pass, no matter what they were actually doing within, all they would presumably need to do is shout 'Go away' and instead of this at the very least arousing further suspicion, as it would under the current system, it would presumably have the new effect of just convincing whoever said 'Open the door' that the person within apparently does not, at the moment, want any company. However, though this alternative certainly seems better so far, there is at least one obvious advanta�e of having a sense of what is deserved even if that sense is going to sometimes, as in this example, create difficulties for one. The obvious advantage is that simultaneous with a sense of what is deserved would or at least could come a sense of what is not deserved. Along with a sense of what is justifiable under the circumstances, there could be a simul­ taneous sense of all that is not justifiable under the circumstances. For example, a person who was certainly prepared to see the justice in letting their parents into their room if the parents were evincing concern about what one were doing might be the very person who could also be most resolute about what kinds of access might not be justifiable under that circumstance. One quite pre­ pared to let them into one's room might not be so easy about letting them look under the rug, etc. And, on the other hand, though Lyotard's proposal seems to leave us freer to say no to anything, more deeply, it would probably also leave us in a situation where we would actually have to say no to more things

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because we could never get offended, never draw the line, since one could only (rationally) draw the line if one had a sense, not just of what one wants, but of what is and is not justifiable under the circumstances. Expressing these dynamics in terms of the example, whereas at first it seems that, if someone asked one to open one's door and one said no, they would go away, another, perhaps more realistic version of how the interaction might really develop is that they might keep persisting until they hit on at least something one was willing to agree to, as in the familiar interac­ tional gambit: 'You won't open your door, but surely you would not mind an occasional phone call.' 14 As we are already implying, even in the second sort of case, when there is no coincidence of desires, there are far more benefits than Lyotard appreciates to be gained from knowing what is deserved. To take just one additional example, while Lyotard has to empha­ sise the advantage to be gained from not actually having to open one's door, surely there is also the prior question of being able to have some sense of exactly what one might have to open. That is, though Lyotard might allow one to bail out of a crisis, there is also the whole issue of whether one would have any resources for attempting to forestall the crisis even arising. Simply put, if one acknowledges that the door deserves to be open in certain circum­ stances, Lyotard is right that, if those circumstances obtain, one would indeed be forced to open the door, but he overlooks the fact that, simultaneous with being forced in this way, would come the knowledge of other things that did not deserve to be open in circumstances when it would be justifiable to open the door. Clearly, one could utilise knowledge of what one could never justifiably be expected to open to maximise the chance that, if there were something one wished to conceal, instead of refusing to reveal it (Lyotard's strongest form of resistance), it could be so safely hidden that the question of whether one were willing to reveal it would not even arise. The underlying advantage of a sense of justice that Lyotard is probably overlooking here is that knowing what deserves to happen actually gives the actor strategic resources to resist his opponents because, if something is estab­ lished as deserving to happen, e.g. opening a door as distinct, in most situations from looking under a rug, it is rational for actors to anticipate that it could happen and this can be helpful in orienting one's action. Furthermore, even if there would be those who would violate these principles (as there of course would be) by,

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e.g. expecting to look under the rug where there could be no sense that that deserved to happen, maintaining a sense of justice would

still

be valuable because it would give one resources for resisting

incursions of this sort. While it is true that someone may invade one's privacy in unjust ways, it is also true that, if one has a sense of what is and what is not deserved, one is free to do more than just refuse the offer (to repeat, this is Lyotard's ultimate weapon). One is free to actively resist, to object, to get angry, etc. There is also another reason why it is misleading to assume that removing the idea that the person outside would ever be able to think that one's door deserves to be opened would necessarily benefit the person within. This has to do with the fact that there are additional responsibilities that go along with being able almost to insist that someone open their door. Certainly, if a person says 'Open the door' in the current system, much more is expected of them than just that they have the desire for the door to be open. They are expected to have considerable justification, e.g. a fire, and if the justification is not forthcoming, it is a further expectation that the person within is not as compelled to keep his door open as he was to open it in the first place. This may sound identical to what Lyotard is proposing in that, in both cases, someone first opens their door and then is free to close it again but we would argue that there could be a difference between initially agreeing to open one's door just because some­ one wants one to and one has no objections, and opening one's door because someone is claiming that one's door deserves to be opened and one is willing to wait and see what they have in mind ­ the latter being a more accurate depiction of the traditional idea. The difference can be described by noticing an additional aspect of the original quotation. It is interesting that Lyotard refers to the

door being open as 'a modification of reality'. To formulate this, he

is saying that if one agrees to open one's door, things have decisively changed, even though there does, of course, remain the let-off that the new state (door open) need not itself be permanent. We would suggest that, on the other hand, in the more traditional system, though getting someone's door open would still have to be formulated as a change of sorts, it would not be the best way of describing it to say that the opening of someone's door is a modification of reality. In fact, the opposite interpretation, that even if we get a door open, it still remains to be seen whether reality is going to be modified, would almost be more accurate.

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This is because if it is true that one may be almost forced to open the door if someone is so bold as to say 'Open the door', it is also true that one is

not forced necessarily to modify reality very much

by so doing. We could say instead that what is to be the new reality or, better, whether there is to be a new reality is, as it were, hanging in the balance until one hears the person explain why they have just told one to open the door. To use Lyotard's terminology, one opens one's door only in order to hear a proposed modifica­ tion of reality and, one is then, if not perfectly free, certainly much more free, to close the door than one originally was to refuse to open it. In general, then, that something is thought to be deserved puts much more of an onus on the person who thinks it is deserved than Lyotard seems to realise.

IV So far, we have limited ourselves to considering Lyotard's depar­ ture from traditional usage only as it would be manifesting itself in the relatively unusual circumstance when, in normal usage, an actor would say 'Open the door', that is, when the person without thinks he has a better sense of what deserves to happen than the person within. However, the full implications of his method can be even more clearly developed by considering an additional depar­ ture from normal practices that is implicit in Lyotard's proposals here. One reason

why 'Open

the door' currently has the connota­

tion that it is something that at least the person who is saying it definitely thinks deserves to happen is because there is an alterna­ tive that we are supposed to use in what is at least currently thought to be the more normal situation. In the more normal situation - that is, when the person outside is not so sure that the door deserves opening it is of course usual to knock. This would -

be the additional way in which Lyotard's proposal would change the world: if 'Open the door' became the normal way of indicating that one desired entry, besides this involving the abandonment of any more extraordinary meaning for the expression, it would also mean replacing the current normal form, knocking, with the hither­ to only extraordinary form. People would normally say 'Open the door' rather than as they do now,

unless

they have a definite

conviction that they deserve entry, knocking. The obvious initial point about this change is that, in comparison

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with the previous examples, this puts a different light on the probable basic intention behind what Lyotard is suggesting. If he is telling us not even to bother knocking, surely in at least many situations, instead of serving to protect those within from in­ trusions (which is what we above were tending to presuppose as his main theoretical intention), this aspect of Lyotard's proposals would seem more designed to facilitate entry on the part of those without into places where, in accordance with current more formal practice, entry is a much more difficult matter. Putting the emphasis on this side of Lyotard's proposals fits better with the general thrust of his theory as it is developed elsewhere in his book. For example, if he can be read as here encouraging those outside not to feel so hesitant before at least attempting to enter, that would fit with his more general position that society both is and ought to be redesigning all its institutions, e.g. marriage, education, cultural institutions, etc. so as to make both entering and leaving them much easier. For example, with regard to the structuring of university education, he suggests that the University is beginning, or should begin, to play a new role in improving the system's perfonnance - that of job retraining and continuing education. Outside the universities, depart­ ments, or institutions with a professional orientation, knowl­ edge will no longer be transmitted

en bloc,

once and for all, to

young people before their entry into the work force: rather it is and will be served 'a Ia carte' to adults who are either already working or expect to be, for the purpose of improving their skills and chances of promotion, but also to help them acquire infor­ mation, languages, and language games allowing them both to widen their occupational horizons and to articulate their techni­ cal and ethical experience. 15 So, as in no longer needing to knock, he is proposing that there be much less of a requirement that students deserve to enter before they are allowed into the University. This way of reading Lyotard also makes clearer his affinity with Habermas. Like the latter, the former's ideas probably are at their most compelling as a potential method for mounting at least some form of resistance against power. So, if oppressive power is symbolised in Habermas by the professor (but not the ordinary person) being automatically granted water, in Lyotard it is symbolised by the fact of a closed

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door. And both Habermas and Lyotard are interested in develop­ ing at least some rights for those whom the current system is oppressing. Finally, seeing Lyotard in this way confirms his own claim, referred to above, that he has in common with Habermas (but not with Luhmann) an interest in the cause of justice. However, the issue still remains, as it did with Habermas, as to what the actual effects of Lyotard's proposals might be. Will they further justice? We can further examine this question by attempting to explore the actual significance of a change from

really

knocking to 'Open the door'. Though clearly we currently take it for granted, does knocking perhaps have more potential interest for the actor with an interest in justice than the alternative Lyotard proposes? Beginning to consider the significance of knocking as distinct from saying 'Open the door', though both expressions normally indicate at least some sort of desire on the part of the person outside to gain entry, once we consider more subtle issues, the two expressions seem to have almost the opposite connotation. If, as Lyotard says in the passage, 'Open the door' is prescribing some­ thing, we can use his analysis, earlier in his book, of prescriptive statements to assess the full significance of the expression, as he would see it. He says of prescriptive statements that: Here, the sender (i.e. the person who is making the statement) is clearly placed in a position of authority . . . that is, he expects the addressee to perform the action referred to.16 So, if 'Open the door' is, as he says, a prescription, and prescrip­ tions are as he describes them here, then in saying it the person without is placed in the position of authority, i.e. allowed to deter­ mine what is expected. Interestingly, in knocking, even though the person without would normally have at least some desire to get in, we would say that instead of

him saying that the door should

be

open, it is always left to the person within to fulfil this role. This basic difference can be confirmed by an analysis of possibly appropriate responses in each case. The most appropriate re­ sponses to 'Open the door' would presumably be either yes or no. In both of these cases, the expected action, i.e. opening the door, is being determined by the person without though, of course, if the person within does opt for 'No', it is true that what is expected,

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given Lyotard' s stipulation that no one ought to force anyone else, does not actually happen. What is interesting about knocking, on the other hand, is that, though obviously the system includes some recognition that the person without wants entry, the person without is still supposed to be operating with much less of an expectation that the person within open the door. Thus, among the appropriate responses to knocking would be not so much 'Yes' (at least in Lyotard's sense of 'I will comply with your wishes') or the obvious alternative 'No', as things of the order of 'Come in', or 'Who's there?'. The latter is clearly premised on the idea that the person within is not always even expected to open the door and even the former is, in effect, saying that, instead of the person outside telling the person inside what to do and their only having the option of complying or not, the person inside is instead telling the person outside what is permissible, even though it is the person outside who has initiated the action. The basic difference here might be summarised as that, in Lyotard' s system, it would always be someone who has not closed the door who would be allowed to at least say whether it should be opened, whereas in the traditional system, though others are allowed to make various forms of request for entry, it is actually only the same person who closed the door who has the authority to say whether it should be open again. We have already noted that the rationale for Lyotard's reform is to give more leverage, more potential power, to those outside in their endeavors to gain access. Even as we concede that the change would, at least temporarily'' have this effect, there is still the question of what, if anything, would be lost were the old system abandoned. To put it squarely, though it is evident that in one sense of the concept of justice, i.e. justice as giving more oppor­ tunities, perhaps justice as equality, Lyotard's proposals could have some potentially positive effects, we would still like to con­ sider whether, in terms of the hopefully more developed sense of the idea of justice we are offering here, i.e. the just outcome as somehow the deserved outcome, what real effects Lyotard's pro­ posal might produce. There is at least one area where it is relatively clear that the traditional system would be more advantageous, namely at giving some sense of who has responsibility for the existing facts. If the door remains closed, it is clear that whoever closed it is responsible for that state of affairs and, if they agree to

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79

open it, though it is then the case that others are exerting some influence on the event, still it could be said that whether the door stays open remains the responsibility of the person within. On the other hand, an interesting feature of Lyotard's alternative is that, whatever the actual state of affairs, this question of responsibility seems to lack resolution. First, instead of the current assumption that that fact (whether the door was closed) would largely be attributable to whoever closed it, if it became possible to get doors opened merely by saying 'Open the door', it could certainly be said that the fact that a door is closed could as much be the responsi­ bility of those without as those within. That is, it could be thought that the only reason it has not opened is because they have never even bothered to try to open it. And, though at first it would seem that if someone did try and succeeded in getting the door opened, then at least they would seem to bear the responsibility for the event. The problem is that even here issues of responsibility are not really clear. It is presumably true that the event (the now­ opened door) would not have happened if they had not initiated it, but it is presumably equally true that it also would not have happened if the person within had not been willing. The issue that is surfacing now is why some sort of ability to attribute responsibility for a factual state of affairs would be at all important. We think that such an ability is essential for maintain­ ing an interest in justice, at least as that idea is being defined here. Perhaps the key to this claim is that if anyone as

distinct from no one

(no one being responsible being the true result of Lyotard's alter­ native) is responsible for a factual state of affairs, then it is safe to assume that, at least as they see it, whatever is happening actually

deserves to happen.

In other words, whatever is happening would

not just be an accident. It is reasonably clear that this is the real consequence of Lyotard's ideas. He is right that he is different from Habermas in not treating the fact that a door is closed as if it could ever offer sufficient grounds for opening it. But, what he perhaps does not see about himself is that, if he would go up to a closed door and, instead of knocking, simply see whether he could get it opened, then he is acting as if the fact that it is closed is, as it were, the opposite extreme to a fact that proves something, namely a fact that does not mean anything, a total accident. In general, then, what we would say is that, though Lyotard's ideas probably would minimise the chances of any one person imposing his will on

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80

as a method for producing justice because of their lack of any solution to (and, really, everyone else, still they could be highly problematic we would say their total embrace of) accidents. However, this critique is still vague until we can develop a firmer sense of the relation or lack of relation between accidents and justice. We need, then, to consider at this point not how force can fail to be just, which, as we have intimated from time to time, is what seems to dominate Habermas's, Lyotard's, and, we might venture to say, most modem and postmodern thinking about justice, but instead how accidents can fail to be just. This is an interesting issue in that it at first seems unlikely, as it certainly would to Lyotard, that the sheer fact that just one person is willing to assume responsibility for an action would make that action more likely to be just when, given all the earlier points about the irrationality of expecting a consensus, it might remain true that

only

they would think it deserves to happen. We can begin to

explain this point by considering why, unless what is socially defined as a remarkable coincidence occurs, the typical accident, especially when the outcome it produces is 'bad', but even when the outcome it produces is 'good', tends to be defined as unjust. The reason for this conclusion seems to be that whatever has happened tends to be overly determined just by where people happen to be and when they happen to be there. In other words, the problem with accidents, as regards their potential for justice would seem to be that they tend to have too little to do with who they affect, who they happen to, with the sense of 'who' here being something like that accidents tend to lack any sense of being in any way related to the actions of whoever they affect. We can see this fundamental property of accidents in several ways. Thus, this is probably what is wrong with the typical terrorist act as regards its potential for justice: it will affect whoever

happens

to be on Oxford Street on Wednesday at 10 a.m. Thus it is

not even directed against those who would tend to be on Oxford Street at 10 a.m. on a Wednesday or, if it is, it is at least beginning to be less than total terrorism. At the same time, this sense that an accident is not directed wherever it happens to end up, that its target is just determined by whoever happens to be there at the time, explains why it is much easier to apologise for stepping on someone' s foot rather than for punching them in the mouth. The ability to be excused here is contingent on the ability to claim that one is not fully responsible, i.e. that even the perpetrator would

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81

not say that what happened actually deserved to happen. As we have said, anything even one person thought deserved to happen as distinct from being just accidental, would tend to be directed somewhere in particular rather than just falling on whatever or whoever happened to be there and it is simply much easier to believe that someone whose action was really not directed in this sort of way would be likely to tread on someone's foot rather than punch them in the mouth, the latter obviously tending to require much more sense of direction to manage to reach its target. Punching someone is, then, harder to apologise for than stepping on their foot because it is much harder to accept that it could ever be an accident. Another way to put it is that it is much harder to accept that they did not, at least temporarily, think one actually deserved it. The criteria for an act's potential for justice that we are develop­ ing here, that anything anyone would deserve would not just happen to them because of where they happen to be and/or when they happen to be there, can even be utilised for considering the potential for justice of various social acts that one could never legitimately claim are totally accidental in the way stepping on someone's foot might be. For example, a compliment to the cook at a dinner party is no total accident and yet we could still confront the issue of whether the cook is at all likely to deserve it precisely by wondering to what extent the compliment is largely determined by where one happens to be, e.g. in someone else's house, and when one happened to be there, e.g. at the time of their dinner party. Thus, knowing this could help actors to find ways to reflect on whether (if they are the cook) they actually deserve the compli­ ment or, if they are the guests and the cook actually does deserve the compliment, to find ways to manage to convincingly convey that. With regard to the cook, one valid question might be: do the compliments continue when the party is over - that is, when there would be much more of an opportunity not to continue discussing the dinner party without not doing so being seen as a glaring omission? With regard to the guest who actually is enjoying a meal, he could utilise his knowledge that all concerned would be likely to understand that to give someone what they deserve is a different matter from happening to give them it just because of when it is and where one is by using this knowledge to help him decide when would be the best time to attempt a compliment so as

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to maximise the likelihood that the cook might take it seriously. The problem would be that if one did it too early, then it could seem that it is just where one is, i.e. at someone's dinner party, that is producing one's remarks rather than anything about the food, whereas if one did it too late, it could seem that it is more when one is seeing them, i.e. just before leaving (escaping?) that is producing the remarks rather than, again, anything about the food. What is emerging here is that the socially-achieved sense that someone deserves something, e.g. a compliment, a closed door, even though it does not prove that the particular outcome, the chef being raved about, the door remaining closed, etc. is the definitely correct state of affairs, would still have potential cognitive signifi­ cance for all concerned. It would have the significance of indicating that what is happening is not just an accident, not just something totally a product of time and place to the extent that even the person who has produced it would not really think of it as right. So, what we are concerned about here is the case of there being no justice in the sense of a complete lack of interest in how what people have, after all, produced, e.g. a closed door, a compliment, might be in any way deserved. In other words, we are concerned about a system which might just generate the obligatory compli­ ment to the chef followed, no doubt, by the private post-mortem in which one's real feelings get revealed. Or, to put it positively, we would be looking, instead, in looking for even the potential for justice, for a system which could promote people complimenting the chef in ways that it seems difficult or even impossible to totally attribute to the force of circumstances. How this would look is that people would be speaking in ways that could not just be attributed to the accident of where they happened currently to be. In other words, there would be room for personal responsibility as distinct from just situational exigency as determinants of what they say and do. Lyotard, as we have said, is favouring 'Open the door' over knocking, on the grounds that it would tend to increase the chances of people gaining entry or, in other words, in comparison with knocking, minimise the resistance by anyone inside. How­ ever, the question we would have to raise is whether it would only be doing so by drastically increasing the circumstances which would make it extremely difficult for people to refuse. That is, if one accepts the conclusion above that part of the problem of

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83

whether an outcome could even conceivably be just is not only the problem of producing unforced outcomes but also the problem of how to produce outcomes that are not merely accidents, not just a matter of when and where one happens to be, one can wonder how Lyotard' s alternative could ever produce justice in the sense of the non-accidental. What we are suggesting is that his system might actually produce, as at least its most likely outcome, that the major determinant of what happens would be just the accident of whether anyone happens to be somewhere at a specific time or, in terms of the specific example, whether anyone happens to be within at the moment that someone else is seeking entry in that, in that case, given human nature, it is plausible that there would be a tendency to open one's door at least briefly and, in the opposite case, when no one was within, it would of course be impossible for the door to be opened. In this case, the most reasonable course of action would presumably be for the person without to simply try their luck somewhere else. The key interpretive difference here would be how much signifi­ cance it would be right to attribute to it if, under Lyotard's alterna­ tive system, someone was 'willing' to open their door. What we suspect is that it could be more like something they happen to do given current circumstances, like a compliment at a dinner party. That is, they could simply be more exposed to the accident of whoever might be seeking to gain entry whenever they happen to be inside. One indication that the actual result of Lyotard' s proposals might be more what we are fearing than what he would hope, could be gathered from considering how long the supposedly more open encounter is likely to last. We know from Lyotard's own stipulations that he has ceased to expect anything long-lasting and instead even expects something exceedingly temporary. In terms of the example, he expects that even if people do open the door when they are asked to, they are also likely to close it again fairly quickly. This might be much Jess, as he would like to think, an additional sign of how just his system is because no one is able to permanently require anything of anyone else, as a sign that, as people were not really given any opportunity to consider whether what the accident of who happens to be there at a given time made possible actually deserves to happen (the type of authorisation, we would argue, which knocking, etc. makes possible), it would fit with that beginning that, they would merely be biding their time

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until there would be a slight change in circumstances which would enable them to reverse a decision that they never really wished to make in the first place. Lyotard's fundamental mistake here is to miss the point that, though he is right that if, in the traditional system, someone knocks and the person within, say, tells them to come in, that does not prove that it was right for them to open the door or, in other words it does not demonstrate the necessity of that outcome, he is wrong to conclude from this that, if our interest is in justice, it is therefore safe to abandon the traditional system. The mistake is to assume that if a practice cannot demonstrate the necessity of a given outcome, that means that the practice is completely irrel­ evant for society. To think in this way is to overlook the possibility that the practice could be helping us to at least resist the opposite of the necessary, the totally accidental, or, as we are formulating it here, being totally determined by the circumstance of where and when one happens to be. Thus, without making this whole analysis stand or fall on the significance of knocking, it is easy to show that, whatever its failings, knocking is at least helpful with regard to the problem of resisting the accidents of time and place. So, if someone knocks at the 'wrong' time from the perspective of the person within, it is interesting that what is likely to ensue is not, as Lyotard might fear, that they would normally be told to go away, but more that they would be told, say, to 'wait a minute', which could be analysed as offering some resistance to the accident of what hap­ pens being overdetermined by the sheer circumstance of the time when people are co-present, but without going to the opposite extreme (Lyotard's fear) of hiding behind the right to determine when something deserves to happen by ensuring that, if one does not want it, it will never happen. Here it almost seems that if Lyotard rightly mocks Habermas for expecting someone to open their door just because someone else tells them it is closed, Lyotard is thinking that all one could expect if one knocked at someone' s door is something like 'Can't you see that my door is closed?', rather than the far more usual, as we have said, sort of thing, e.g. 'I'll be with you in a moment.' And, to take another instance, this time focusing on the person outside, if they happen to arrive when no one is there and they knock, the system is actually based on the expectation that they would come back and try again later (rather

Lyotard

85

than just give up), which could be analysed as offering at least some resistance to what we feared Lyotard's alternative would lead to, just letting whether one will ever enter anywhere be determined by circumstances, in this case, the circumstance of whether anyone happens to be in a specific place at a specific time.

3 Justice I The basic conclusion of the first two chapters is that both Haber­ mas and Lyotard fail, albeit in different ways, to develop any sense in which the actor might actually deserve what happens to him and that, therefore, both fail to have a theory that really comes to grips with the concept of justice. According to Michael Sandel's important critique of Rawls, Habermas and Lyotard are not alone in this respect, because Rawls's theory of justice, which is, un­ doubtedly, the most influential modern work on this topic, con­ tains the idea that 'no one can properly be said to deserve anything' . 1 Rawls, because he is more self-consciously related to the whole intellectual tradition of thinking about justice than either Haber­ mas or Lyotard, has the virtue of being aware of the fact that he has abandoned the traditional concern with the just outcome as the deserved outcome. Rawls has sought to justify this dramatic shift and, therefore, his work on this issue, as summarised by Sandel, can furnish us with an initial resource for seeing why a typical modern theorist finds it difficult to equate justice with desert as it has been traditional to do. The problem can be seen to have developed as a result of certain fundamentally positive aspects of modernity's way of thinking, namely our much more enlightened sense of how much that befalls a person is better seen as an accident than anything they themselves are responsible for. Thus, modern social science has, thankfully, moved us away from the unenlightened attitudes of caste and aristocratic societies in which people are thought to deserve things

via (what we would call)

the accident of their birth.

However, as more recent social science has overwhelmingly demonstrated, even in so-called meritocratic societies, where some might try to claim that people are allowed to deserve their fate because fate is supposed to be linked to achievement, great 'arbi­ trariness remains, most notably in the form of social and cultural 86

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contingencies'. 2 In other words, in any allegedly meritocratic so­ ciety that has existed so far, the accident of birth has still deter­ mined that, in actual fact, some persons do not have to try as hard as others to succeed. Furthermore, Rawls has pointed out that even if there could be a society in which the amount of reward were exactly proportional to effort, even there it would surely be the case that: The effort a person is willing to make is influenced by his natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things being equal, to strive conscientiously, and there seems to be no way to discount for their greater good fortune.' Finally, as Sandel suggests, this point can be generalised to all aspects of character so that it now seems wrong to say an individ­ ual deserves his fate even if we can point to his good or bad character as the sole cause of that fate since, we know that this character is, at least partly, the product of things the individual could not control, his parents, his other early experiences, etc . : Some may think that the criminal deserves his punishment in the strong moral sense because he deserves the low character his criminality reflects . . . . But . . . this view is surely incorrect. It seems to be one of the fixed points of our considered judgements that no one deserves his place in the distribution of native endowments or liabilities, any more than one deserves one's initial starting place in society. The assertion that a man deserves the inferior character that prevents him from overcoming his liabilities is equally problematic; for his character depends in large part upon unfortunate family and social circumstances for which he cannot be blamed. The notion of desert seems not to apply to these cases. 4 We suspect that it is this modern insight as to the minimal extent to which anyone can be said to be the strict cause, even of their own character, which is behind the general reluctance, not just of Rawls, but of Habermas and Lyotard as well, to even begin to look for their concept of justice in the concept of desert. We are hoping to rectify the current lack of interest being paid to justice as desert. For this reason, what we are basically wondering is whether the

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problem described here that has afflicted previous attempts to link justice with what is deserved would invalidate our attempt as well. Where we anticipate that our theory might have an advantage is in helping us to appreciate that part of the idea of thinking about instances of justice (or not) is not so much a matter of thinking about whether someone has in fact caused an outcome in question but more whether the outcome seems a fitting (deserving in that sense) outcome in the light of whatever they have done, even if, say, they may have done it by accident.

II We shall seek to clarify the differing sense we here have in mind for the idea that an outcome is the just one, using an outcome cited by Sandel. The outcome is that someone is rejected for medical school. The problem of justice, then, is clearly to work on whether this could ever be said to be deserved. Firstly, we can highlight the problem by acknowledging that the difficulties mentioned by Rawls potentially apply. The difficulty with saying that a rejection by a medical school could be deserved is that, even if we can see, say, that the applicant had extremely low grades and that therefore we would be tempted to say that what happened deserved to happen to him more than, say, it deserved to happen to someone with extremely high grades, still we must confront the problem that his low grades presumably had some cause, e.g. faulty up­ bringing leading to poor study habits. From this recognition, we can then find it hard to say that he was fully deserving of the outcome by which we would mean that it was partly a result of factors outwith his control, for example, whoever his parents happened to be. In what follows, we have no wish to challenge the specific point here, i.e. that a person may not be responsible for his low grades. But we do wish to question the implicit general point, namely that the fact that it can be shown that one is not the only cause of some outcome implies that it is hopeless to pursue the possibility that one might deserve that outcome. The most direct way we have of resisting this general point is to point out that there is a difference between the idea that a given outcome is just or deserved and the idea that the outcome involved only factors that the actor was the actual cause of. Here, we need an example. Imagine that two

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students are both applying to medical school and the only differ­ ence between them is that one of them makes an absurdly slap­ dash application.

Say he does not even read the questions

properly, omits one page completely out of sheer carelessness and even soils another page. We could say that this person does not deserve to be admitted and so, in that sense, his rejection would be just, and yet reaching such a conclusion could certainly not rule out our simultaneous recognition that his faulty application was not the sole or even the major cause of his actually being rejected. For example, perhaps it would turn out, were we privy to all the facts, that the real reason why the sloppy application was rejected had little or nothing to do with the fact that it was sloppy. Perhaps, as just one possibility, it turns out that they were simply rejecting all applications that day. In this instance, even though it turns out to be true that the person was not really responsible for what happened to him, we could still say we could see how he really deserved it, meaning that we could see it as an outcome that certainly fits with what he did do, even though, were it not for an accident, the fitting or just outcome would not have occurred. However, this sort of case is not a straightforward enough example of the problem that is troubling Rawls and Sandel because the sense in which the outcome is not the responsibility of the agent is not yet a matter of the agent not being to blame. But, there are cases when one could certainly not be a t all inclined, as one might be in the above case, to totally blame the agent for his actions and yet where one would

still

be strongly inclined to say

that what happened deserved to happen. For example, instead of someone making a careless application, perhaps someone was about to apply when, the week before the application was due, they came down with a major Illness that left them incapacitated for months. As one of the contingencies associated with that event, they never actually carried out their intention to apply to medical school. In this case, were he not admitted, were he reflective, surely the actor would be prepared to say he did not deserve to be admitted, even though, at the same time, it would indicate a highly irrational level of self-criticism were he to say something like 'I only have myself to blame for not getting into medical school.' In other words, he would or at least should not feel much guilt, much responsibility in that sense for not being admitted, and yet that feeling could co-exist with feeling that he did not really deserve to be admitted at least that year. Not being admitted is just

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in the sense that it is a fitting accompaniment to not having done the application even though seeing that would certainly not rule out seeing the actor as not bearing sole responsibility for his not having done the application. Another way to see this point is to see what at least the reflective actor ought to feel in such a case in the unlikely event that he were admitted after all. Perhaps, say, he told his story to an adminis­ trator and this person, out of the kindness of his heart, decided to bend the rules and admit him after all. The point would be that even if this did happen, it would be wrong for him to conclude simply that, 'Oh well, I got what I deserved after all.' More appropriate, surely, would be 'I was lucky', which is to say, given what happened, he did not really deserve to be admitted. That is, the fitting outcome of his actions, even though he was not at all the only one responsible for those actions, could never be said to be an admission to medical school and so it took more than he deserved, i.e. some luck, for him to actually be admitted. Again, we see that one can deserve or, here, not deserve, something even when one is certainly not the only one to blame for what one is doing. At the risk of repetition, the force of the idea that the person did not really deserve to be admitted in any of these cases, is that we can see not being admitted as the most appropriate, the most fitting consequence of his actions. The way in which considering issues of justice is serving the actor here is that it is giving him the opportunity to make a distinction between things that deserve to happen to him and things that do not, by differentiating events that are really just visited on him, from events that he could see how he has created, even though, in the latter case, he or we might be reluctant to say that it is totally his fault that he did whatever he did. For example, he ought to see that he has in a sense created and, in that sense, deserves the rejection from the medical school if he did make a careless application, even as he could also see that there are many extenuating factors which help us to understand why he made the careless application. On the other hand, if he did put a good deal of care into the application and it turned out, say, that they only rejected him because they had temporarily mis­ placed his application and then not found it again until it was too late, that would be a clear example of injustice as we would use the idea, in that what is happening in this case is so utterly out of keeping with anything that he himself did. In other words, in this example, far from his fate being somehow a consequence of how

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much care he put into the application, which is what we say justice, at least in our sense, would require, here all the care he devoted to the application would seem to have managed to have no effect whatsoever on what actually happened. justice in the sense we are developing it here works much better as a potentially socially useful concept if we jettison the concern with justice from a concern with which political philosophy, e.g. Rawls (and Habermas as well) associates it, namely its use as a method for enabling a society to decide how best to distribute its scarce resources. Sandel quotes Hume to the effect that 'if nature supplied abundantly all our wants and desires . . . you render justice useless'.5 Or, again, 'Were scarcity . . . overcome al· together, then justice, being totally useless . . . could never poss­ ibly have a place in the catalog of virtue'. 6 What this view overlooks is the possible reflective function for the concept of justice, how people might wish or need to know what, on the basis of their actions, they do and do not deserve even if, say, there happened to be an unlimited supply of something or even every­ thing. What might help us to explore the key difference here is to appreciate that there is something that most certainly would re­ main in the world even if there were no scarce resources. Surely one thing that would continue to exist, no matter how wealthy a society became, would be circumstances or contingencies. Unless there could be such a thing as the same fate for everyone, we can think of any society as inevitably involving each of its actors in differentiated circumstances. Furthermore, this concept of circum­ stances can be applied both to more general aspects of one's fate,

as in 'I am in medical school' or 'I am working on a farm' and to much more specific, temporary, and localised aspects of one's fate

as in 'I am getting wet in a rainstorm.'

Our point about justice, which, we would say, makes it more than merely a concept necessary when resources are scarce, is that it is the concept which could enable us to engage in a form of reflection about our circumstances, our fate, everything that, as it were, happens to us. The form this reflection would take is to enable us to divide these circumstances into two basic categories, although it would also be important to see that the line between the categories is not necessarily hard and fast, so the categories are not mutually exclusive. The two categories would be circum­ stances that we have created and therefore would most certainly

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deserve, and circumstances that really seem to be just visited on us and, so, while we would certainly not need to deny the existence of them, we do not really need to attribute them to ourselves in the same way. For example, we could think of not being admitted to medical school as someone' s fate and then, whereas Hume et al. would have to say that, were society not to have such a limited number of medical school places available, there would cease to be a need for anyone to ever consider the justice in this. On the other hand, we would say that there would still be cases where someone deserved this, e.g. when his application was completely careless to the extent that it revealed real indifference to the institution he was supposedly eager to enter and, in such a case, it would be import­ ant, even to him, to see the justice as distinct from the accide,ntal character in his being rejected. This would be a case when even the agent of the action, assum­ ing that he has an interest in justice, could see that, though he is suffering, he also deserves to suffer. And we can see how there would be benefits, both to him and to society, in achieving a recognition that he does deserve his fate. For example, if he can see that he does deserve to be treated in this way, he would at least have the opportunity not to repeat his mistake. Thus, it would surely show a total lack of self-reflectiveness in this instance if he reapplied and expected thereby to have an improved chance of admission without at least devoting somewhat more care to the subsequent application. The need to reflect on justice here is the need to try to under­ stand why whatever is happening to one is happening to one. We are saying that this need is served by the ability to perceive Oustified) consequences of one's own behaviour. That is, if even the actor himself would say, on reflection, that the application he submitted did not really deserve to be read carefully, then he is saying and seeing that he acted carelessly. In seeing what deserves to happen to him, he is gaining some objectivity about what he has done (in this instance acted carelessly). However, at the same time we must be careful to note that he would always need to be able to entertain the other possibility, namely that he certainly does not deserve to suffer in this way, i.e. not to be read carefully. It will further illuminate our argument to develop an initial sense of what form such an understanding would take. If the actor reflected that it was unjust if, say, the admissions officer did not

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read his application very carefully, he would not be concluding that the event could not have happened. He would, instead, be saying that if it did happen, it would have quite a different significance than if it happened because of his own carelessness. In this instance, assuming that his conclusions were warranted, he would be convinced, on reflection, that whatever his application might have lacked, it certainly did not lack care and from this it would follow that his application really did at least deserve to be taken seriously, e.g. read thoroughly, attended to in all its details, etc. At first, though, it is difficult to see how, even if he is right, knowing this could benefit the actor as, of course, his application is still rejected in any case. One way to get at the potential benefit is by seeing the potential cost if the actor did not realise that he was being treated unjustly here. The potential cost would be that, if the actor did not appreciate how undeserving the lack of seriousness of his treatment was, his natural tendency would be to assume that it must be a problem with his own actions that is producing the consequence in question. The likelihood, if this is what he con­ cludes, is that he would respond by being even more careful next time. Now, at first, it seems that this could do no harm, but one way to see the problem that would ensue is by recalling some traditional wisdom about the nature of the virtues. This is the point that moderation is essential to any virtue because there is a fine line between any particular virtue and the excess with regard to it which can turn it into a vice. For example, courage is a virtue but there comes a point when it would be more apt to say (even though in a sheerly descriptive sense it might be plausible to depict their continuing behaviour as an instance of courage), that some­ one is acting more like a fool than anything worthy of the label 'courageous'. Similarly, loyalty is a virtue but there sometimes comes a point where one wants to say that someone is really just pig-headedly stubborn rather than loyal. Or, to relate the point to our example, if one has already made a careful application, mean­ ing one that is really deserving of the admission officer's close attention, if, in response to a failure, one sought to make one's next one even 'more' careful, there is the likelihood that all one would really be doing is being obsessive. Thus, one could imagine someone who in their efforts to answer the question 'Why do you want to come to Tulane?' had already researched the good points of the city. If they, erroneously, felt they needed to improve on that,

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they would feel compelled to delve into esoteric aspects of the history of the city which could eventuate in an absurdly detailed version of why they might wish to be there. So, if this actor does not see that his previous application deserved to be taken seriously (even though it was not) and, in other words, that he was already very careful, there is the danger that, in his understandable efforts to be admitted, he will just turn himself into an obsessive. Thus far we have emphasised how reflections on what is justi· fied could help the actor toward an objective perspective on what has already happened to him. In addition, there is a way it could help him before he acts. A feature of human activity which has best been described by Hannah Arendt, is its unpredictability.' We never really know for certain what are to be the effects of any activity we initiate. This aspect of action has many implications but, if we single out the one that Arendt herself emphasises, it would be that, according to her, we can never really assess action until after it is completed. The implication she draws is that: 'he who acts never quite knows what he is doing . . . he always becomes "guilty" of consequences he never intended or even foresaw . . . '. 8 The obvious practical problem this creates is: what could ever offer any guidance to the actor in the course of acting? Our suggestion would be that the actor could utilise his developing knowledge of what would at least deserve to happen if he acted in a given way. To apply the point to one of our examples, it is true, as Arendt would emphasise, that no matter what sort of applica­ tion that we make ensures that we will definitely be admitted to medical school. However, that fact does not necessarily mean, as Arendt implies, that the activity of applying must become just a matter of sending in anything and then sitting back to wait and see what eventually happens. If one had a sense of what would deserve to happen if one made a particular type of application, e.g. a careful one, that would enable one not, admittedly, to know in advance what will happen, but at least to anticipate what it will appear, even after the fact, that one really should have done in the first place. We would argue that this clarification of the differing (from Hume, Rawls, etc.) way of thinking about the uses of the concept of justice would further help with the key problem mentioned at the beginning of this chapter, namely that it seems problematic to say a person could ever be the only cause of what happens to him and so, in some sense of the term deserving, it seems difficult to

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say he deserves anything. For example, to further develop this issue in terms of an example of a fate briefly referred to above, perhaps someone gets wet in a rainstorm. Could we ever, on reflection, say that they deserve that fate? Presumably a clearcut case of when it would seem absurd to say this was just something visited on them would be if, out of some sheer wilfulness, even though they knew it was going to rain, they declined to wear their raincoat or take their umbrella. Here, even those highly attuned to the extent to which our psyches are products of circumstances might be inclined to concede that, at least up to a point, causal responsibility is clear and so they do, in a sense, deserve their fate. However, much more significantly, there could also be cases where it might really seem wrong, to the reflective actor, to see their fate as just visited on them even though, according to strict causal criteria, they would certainly not be the sole cause of what happened. Consider the following example. Perhaps, although the weather looked extremely threatening, one had listened to the weather report which promised sunny skies and, because of that, decided against any form of protection against the rain. In terms of a strict sense of who is responsible, one might be inclined to say it is the weather bureau but, still, there would certainly be something to be said for the idea that, in this case, one deserves to get wet. Were one to reach that conclusion, it would mean something like: It serves you right for trusting the weather report against the evidence of your own senses. In other words, your wet fate is, in a sense, deserved in that or, better, if it reflects the typical or perhaps even atypical option that

you

selected, e.g. it is a good

reflection of your exaggerated adherence to authority figures against the clearcut evidence of your own senses. At the same time, saying that you deserve it, certainly does not mean that you are the only person whose faults had any bearing on the outcome. And, if this is the form the reflection on issues of justice ought to take, as we would argue it is, we can again see more of the social point of it. Perhaps contrary to our association of justice with issues of criminal responsibility, the actor may not be getting help in determining issues of responsibility in a sense like who would be criminally liable for the event in question (thus, if this is the question, one would of course still be inclined to blame the weather bureau), but the actor is getting help in experiencing in a very tangible form, e.g. his soaked state, some of the negative aspects of (at least his current) self.

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Thus far we have discussed only theories of justice of which this work is critical. It is time now to turn to one which, though it comes out of an entirely different perspective, we would say has clear affinities with our own work, namely Dante's theory of justice. Dorothy Sayers well describes Dante's version of Hell. She is focusing on one specific punishment, namely that excessively lustful lovers who are in Hell are buffeted by a black wind: The black wind. As the lovers drifted into self-indulgence and were carried away by their passions, so now they drift for ever. The bright, voluptuous sin is now seen as it is a howling darkness of helpless discomfort. (The 'punishment' for sin is simply the sin itself, experienced without illusion - though Dante does not work this out with mathematical rigidity in every circle.)" -

Clearly something different from the standard Christian version of Hell is at work here. The background against which Dante has made his departure from his tradition is that he has obviously lost faith in the idea that Hell is some literally existing place where sinners are eventually made to pay for whatever evil they have committed. This crisis of faith has all sorts of possible implications. It obviously raises the possibility that there is no such thing as Hell or, as we might prefer to put it today, that the concept has lost its utility. This possible loss of belief in the existence of Hell might in turn be associated with a more general loss of conviction that we really do necessarily suffer for our evil deeds. Finally, and most basically of all, if there is no punishment, no suffering for evil, one seems to need to at least ask the question of what exactly is wrong with doing the so-called evil deed. That is, what is really wrong with doing it if there are no definite negative consequences of it? However, Dante finds a way of avoiding all of these conclusions. We shall seek here to reconstruct his reasoning in a way that is, hopefully, both consistent with the historical record and relevant to our own concerns as we have been developing them throughout this work. It may be true that very lustful lovers carried away by passion do not, after their death, end up being made to suffer pain for their life of pleasure. However, that truth is not yet sufficient to warrant the conclusion that there is nothing wrong with their

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activity. It is surely a truth about any form of activity, e.g. lustful love, that those engaged in it are engaged in a form of environment creation. They are,

via

their activity, creating some of the circum­

stances in which they lead their lives. This general fact - the productive side of human activity - means that even if we feel we can no longer ask what will happen to a person who does that after he dies, we can now replace this with another, in many ways similar question: what is happening to a person who does that, not after he does that, but while he does that. We would say this is the question Dante is always asking and, in this case, his answer is that, if you let yourself be carried away by your passion, not what will happen to you but what

is

happening to you is that you are

being blown about in a dark state which helpless discomfort probably best describes. These are the circumstances in which you are living if you are carried away by your passions. To take another example, one of Dante's most striking depar­ tures from tradition is that he makes the worst place in Hell, the ninth circle, not extremely hot but extremely cold. Dorothy Sayers explains: here at the centre of the lost soul and the lost city, lie the silence and the rigidity and the eternal frozen cold. It is perhaps the greatest image in the whole

Inferno.

'Dante,' says

Charles Williams, 'scatters phrases on the difference of the place. It is treachery, but it is also . . . cruelty; the traitor is cruel.'

Figure of Beatrice,

(The

p. 143) . . . . The conception is, I think, Dante's

own; although the

Apocalypse of Paul mentions a number of cold

torments, these are indiscriminately mingled with the torments by fire, and their placing has no structural significance.10 Once we are clear that those in the last circle are all people who have betrayed someone who was initially very close to them, e.g. the devil, Judas, the fact that they are frozen in ice can be seen as another instance of the same idea. To betray one's friends

is to put

oneself in a state where one is not allowed any warmth, warmth being a clear metaphor for the feeling that a friend emits. So, being frozen in ice actually captures the activity of betrayal in a way that the more traditional idea of extreme heat does not. For example, if we wanted to describe the kind of pain that would tend to be associated with the activity of being unresponsive to the call of one's closest friends, the notion that one is so cold as to be numb,

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i.e. that one has lost all feeling, seems just more descriptive than the idea that one was being burnt alive. Now, if we compare this Dantesque version of Hell with the traditional one from which he departed, we shall find there are two crucial ideas. Firstly, assuming some minimal ability to appreciate metaphor on the part of his readers, we can say that Dante has overcome the problem he had with the tradition, namely his inability to feel convinced that the supposed consequence of the sin, e.g. eternal torment of some kind, was a real consequence. Again with the proviso that one has enough appreciation of meta­ phor to see how a black wind is like lust or being frozen is like betraying one's friends, we can accept how a black wind really exists for excessively lustful lovers or extreme cold for traitors, in a way we might not be able to accept that more traditional hellish punishments exist. The consequences we have cited here are definitely real in that insofar as one is doing the activity in ques­ tion, one could really be said to be creating the circumstance with which Dante associates it: if one is letting oneself be carried away by one's passions, one is being blown about by forces one has no control over, if one is betraying one's friends, one is putting oneself into a very cold state. Second, though what happens to one here is, unlike more traditional hellish punishments, a dear consequence of what one is doing, even though it is not a traditional hellish punishment, e.g. not a fire, it has in common with the tradition that it is certainly a form of suffering. In other words, we could be quite confident that the black wind, the ice, etc. are things that no one would actually desire even though, and this is part of Dante's irony, the divine comedy of it is that, people are actually creating these ways of life for themselves. They are choosing to live in these ways

via

their

self-indulgence in passion and treachery respectively. So, he has solved the problem of how these activities can be said to be evil, wrong things to do. They are wrong in that not even those who are doing them would actually want to do them, if only they could see what sort of circumstances they are creating for themselves. However, there is a need to clarify the fact that, even though we are saying that some people, some of the time, deserve to suffer what they suffer because they have produced it, we would

not

wish to imply that, just because someone is suffering something, that means that they must deserve it. The point is that the actor ought to

reflect

on whether he deserves his fate, which would be

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quite different from him just assuming that he does. And we would also claim that we have suggested the appropriate question to ask as one conducts these reflections. This would be the ques­ tion of whether whatever circumstances one finds oneself in are better seen as one's creation in the sense that it is the very thing one is choosing to do which produces those circumstances or, alternatively, as something just visited on one in which case whatever is happening seems, on reflection, not an inevitable feature of one's own activity but more an accidental result of what one is doing. We would suggest that Dante can help us with this aspect of the problem as well. There are interesting and controversial features, not just in Dante's version of Hell but in his version of Heaven as well. Focusing on a problem that has proved exceedingly trouble­ some to Dante scholars, Dante placed in Paradise and, further, gives to St Thomas the task of praising this figure, a representative of a tradition to which St Thomas and, by all accounts Dante himself, were both implacably hostile, namely the Averroist Siger. The puzzling aspects of this are well described by Gilson: If we consider Thomas and Siger in all their concrete historical reality, we come up against a series of impossibilities. Siger was an Averroist, and Thomas fought Averroism . . . Siger assumed that reason is not always in harmony with faith. Thomas denied it. Siger assumed that philosophy believes in the unity of the 1 possible intellect; Thomas rejected this thesis. 1 So puzzling is the inclusion of Siger that it has led at least one commentator to conclude that Dante simply made a mistake. According to Mandonnet, 'in all probability Dante was not ac­ quainted with the doctrines of Siger of Brabant'. 12 Against this interpretation of why Siger ends up in Paradise, we can firstly note, as translated by Gilson, Dante's own version of why he puts Siger there: 'This figure is the light of a spirit who, wrap! in grave thoughts, found death slow in coming. This is the eternal light of Siger, who, when he taught in the Street of Straw, established unwelcome truths.' 13 That he 'found death slow in coming' refers to the historical fact that Siger suffered martyrdom for his thoughts. The preliminary explanation for why he suffered which we are given here is that the truths which he established were 'unwelcome'. Gilson offers helpful historical details which indicate

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in some detail what these truths were and why they were so unwelcome: Siger

of

Brabant

belongs

to

the

group

called

'Latin

Averroists' . . . he was probably one of its most intelligent representatives . . . . In (his work), in which he reveals remark­ able gifts as a philosopher, Siger professes to discuss and solve the problems with which he deals from the standpoint of reason alone. There is nothing of the extremist in Siger. He is not a rationalist in revolt against faith. He is not even a man who takes a delight in noting a dissension between his reason and his faith. He does not seek conflicts, he resigns himself to them. A Master of Arts in Paris University, he teaches philosophy and nothing else. When the conclusions to which he is Jed by the philosophy of Aristotle contradict the teaching of faith, Siger contents him­ self with propounding them qua the conclusions of philosophy, but he maintains at the same time that the teachings of faith are the true ones. 14 Clearly the unwelcome truth, then, is that the conclusions of reason or, at least those that Siger could gather from Aristotle, contradict the teachings of faith. This is unwelcome simply in the sense that it would not please the average person, who would certainly prefer to have his faith buttressed by what would be a very convenient support. Siger then was undercutting something that would obviously have been extremely convenient. This would clearly make what he had to say unwelcome. However, the ques­ tion which still needs to be asked, and which obviously must have been asked by Dante was: does all this mean he deserves to suffer? And the key to answering this question, we would say, would be to consider whether he is creating his suffering or whether it is better seen as just visited on him. Obviously, in some literal causal sense, we might have to con­ cede that he

is

creating his suffering. If he were not a Latin

Averroist or, in other words, if he were not Siger, there would have been no reason for people's hostility to him. However, considering the passage more carefully, we can say that in some deeper sense what happened to him really is better seen as an accident. What Siger really chose and, in that sense, what he is really responsible for the consequences of, was to pursue truth. Thus: 'There is nothing of the extremist in Siger.' 'He is not a

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rationalist in revolt against faith.' 'He does not seek conflicts, he

resigns himself to them.' The general sense we get from all this is that though his interest in truth clearly gets him into hot water, the

hot water was, as it were, just an unfortunate consequence of

where the truth happened to lead him given the resources for reasoning that happened to be at his disposal at the time and the

historical situation in which he happened to be. Thus, we could

see how this is the kind of thing that always could happen to anyone with a serious interest in truth but, at the same time, we can also see how, if it does happen, it is better seen as something visited on them. In other words, we can perhaps see that it is not really their interest in truth that creates these events but more that

the events are a reflection of the unfortunate situation in which they happen to be maintaining their interest.

Now, though we have argued that Dante departed from his own

tradition in being able to see actors as being rewarded and pun­

ished in this life, we would still have to admit that there is a

difference between the sort of thing Dante is doing and the sort of thing that, say, Lyotard and Habermas are doing. This key differ­

ence would be that whereas their ideas of justice end up with a vision of a just secular society which, at least arguably, could be

implemented, Dante's work does not have this quality. In spite of this, we would suggest that it might be possible to

construct

a

secular society in line with the notion of justice we have been locating in Dante and, our additional point would be that what we

would end up with, were we to do so, would be the version of a just society that has been implicitly developed in this work via our criticisms of Habermas and Lyotard.

One way to illuminate this issue is to see how the proposals for a

just society implicit here would directly compare with those we should now be familiar with from Habermas and Lyotard. First, in

comparison with Habermas, there would be much less interest in

actors acting in ways that they could rationally expect to engender no controversy. The underlying fear which would probably cause our actor with an interest in social justice to eschew such a concern

would be the difficulty of ensuring that one would have much

opportunity to actually do anything that one would even oneself see

as worth doing if one needs to orient so much to the question of whether anyone might have a criticism of it. In terms of actual social practices, what we could imagine here is that we might need

to substitute for Habermas's image of justice as requiring full

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public discussion involving as many people as possible, something much more intimate in which the actor might have opportunities to converse with people whose probable modes of resistance would at least not force him to become so defensive that his actions might lose their potentially distinctive quality. In comparison with Lyotard, the major difference would have to be in the attitude toward the circumstantial. Whereas he seems, in our reading, to virtually prefer things to happen by accident or, in other words, just because of when one happens to be where one happens to be, we have been arguing that for something to just be visited on one is really injustice. But the question here would be how an interest in minimising at least unjust accidents could become a possible feature of a society. What we would suggest is that exactly this is a not-very-often noticed function of there being what Lyotard proposes to abolish, namely structures of expectations such that any actor can have at least some sense of the behaviour appropriate at a given time to a given environment, e.g. the family, the university, a nation. The charge Lyotard makes against these, as we said in Chapter 2, is that they seem to coerce people, to force specific behaviours on them but, even if this does sometimes happen, what seeing them this way tends to overlook is that, even thinking about the issues from the perspective of what they force, it would be much more accurate to say that what they tend to force or, better, impose, is not so much a specific behaviour but rather a specific way of defining or interpreting a piece of behaviour that, were the expec­ tations not operating, could otherwise be interpreted quite diffe­ rently. For example, marriage clearly does not force people to be attentive to their spouses or there would be no way of accounting for the fact that many people who are married do not pay much attention to their mates. But what it does do is to almost force married people to define certain behaviour, e.g. in at least some versions of marriage, the forgetting of major occasions, as inatten­ tion. We can see how marriage forces or imposes itself here, not in the fact that it makes all married people remember all of these occasions (it does not, of course) but in the fact that it tends to force married people to share the definition that one or both of them is being inattentive if these major occasions are being forgotten. In other words, they are not forced to be attentive if they are married so much as constrained to either be attentive or, at least to recog­ nise that they are not being attentive if certain things are tending to

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be neglected. The implication for our version of justice is that, since we are saying that justice would at least require that someone be interpreting one's actions correctly, one real problem for a would-be just society would be to ensure that at least some people would be in a position to have a fairly clear sense of what someone is doing, not so they could necessarily agree with it, but so that they would at least be able to react to it in a fitting way. We would say that a key requirement for being in such a position would be that one would need to be able to judge whether (to express the general point in terms of the specific example) some­ one is being inattentive as distinct from other at least feasible interpretations of the same behaviour, e.g. they are just ignorant of the facts, they have better things to do and so they are not so much inattentive as ordering their priorities, etc. Our point is that, if there were too many alternatives of this sort which one would need to consider, it would become too difficult to ever decide on what one is actually seeing, e.g. inattentiveness, and so too diffi­ cult to avoid always misinterpreting everyone and therefore being unjust to them in this way. Expressing this theoretical point as a practical proposal, we would have to say that our version of the just society would include many more structured expectations than Lyotard' s, but with the hope that these would not so much force people to act in specific ways but, instead, at least constrain people to have some ways of agreeing that they are acting in certain ways, e.g. inattent­ ively in a marriage, carelessly in a medical school application, arrogantly or sloppily in a seminar, etc. so that it would be possible for them to see the various reactions to them as, given what they are doing, either just or unjust.

IV We shall try here to indicate at least some of the consequences for our thinking about various issues that can follow from the differing way we have developed the concept of justice in this chapter and this work as a whole. One major concern is the status of the idea of undeserved suffering. There is a tradition which goes back at least as far as job which sees only pain as associated with the recognition that the actor is a victim of undeserved suffering. More modern articulations of the same basic idea would include

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Voltaire's Candide, which satirises the idea that there can be any justification whatsoever for a world in which there can be things like the Lisbon earthquake, and Melville's horror at the destruction of innocence as portrayed in

Billy Budd.

Without of course wishing

in any way to deny that there is this painful side to undeserved suffering, it must be said that our analysis does point to another, potentially more pleasurable side that can accompany the recogni­ tion that one sometimes can suffer without deserving to suffer. That there could be joy as well as pain in developing the conviction that one does not deserve to suffer has to do with the fact we have been developing that, if one does deserve to suffer, it means that one has oneself produced the suffering. So, if one is satisfied that one does not deserve to suffer, one has at least achieved the recognition that, if there is something evil, i.e. clearly painful, about a situation one is experiencing, one could have the joy of seeing that it is not either what one is or the way one is behaving that is creating the pain. A second, even more basic point also concerns something else we might actually learn if we conclude that we do not deserve to suffer. Before he had achieved the recognition that he did not actually deserve to suffer in a situation, the actor could be experi­ encing a deeper ambiguity than just the question of whether he is to blame for what is happening. There would or, better, at least sometimes could, be the more ontological question of

whether

whatever is happening is really there or, alternatively, whether it only appears to be there because of the way he is behaving. Obviously, the type of examples of circumstances which we select for our thinking about justice will greatly influence whether this aspect of the problem will even appear to us. Thus, it is not really rational to even debate whether one might be seeing something that is not really there because one is producing it if the type of circumstances one is focusing on would be epitomised by the Lisbon earthquake or the series of tragedies with which job has to deal. On the other hand, if one thinks, as in the case of Siger, of a typical circumstance as hostility, we can see how it could indeed be a relevant and lively issue to determine whether the thing is really there or only appears to be there because of shortcomings in one's own behaviour. Here, then, in considering whether one deserves to suffer, one is not so much entering into abstract speculations about whether the world is a good or bad place. Instead, one is gaining at least some purchase on what sort of world is actually out

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there in that if one were capable of seeing that one actually deserved hostility, that would lead to quite a different interpretation of how much hostility was really there than if one concluded that one did not deserve it. A third important developing some

implication

concerns the prospects

of

unarbitrary way

of considering whether a given piece of behaviour is virtuous. This issue bears on a key dilemma for modern ethical thought. In so far as (what is typical) the modern thinker conceives the question of what is virtuous to be settled by resort to what a particular group just stipulates as virtuous, the thinker is conceding that there is no real way to demonstrate whether a behaviour is virtuous or not. And one consequence is that the actor then has no way of considering whether a given act would be virtuous or not, as that issue is not subject to consideration but just to settlement by consulting the criteria of whichever group one would be happening to orient one's behavior to. We can get some help on how our basic ideas might bear on this problem by depicting, in somewhat more detail, Dante's version of Paradise. The essential point here is that he finds himself able to use the same basic method for rewarding virtue as he was able to use for punishing wrongdoing. That is, he finds that in letting the characters more fully do whatever the potentially virtuous behav­ iour is, including letting it produce whatever circumstances it would be natural to associate with it, he is generating a blissful state for his characters. In other words, he does not, as would be consistent with the more traditional idea of Heaven, find that he has to reward them

for

their virtuous behaviour because it turns

out that just letting them do the behaviour, albeit more than might be possible in ordinary life, is itself rewarding. If Dante is success­ ful in this enterprise, as we shall argue he is or, in other words, if something that we can concede is just a natural consequence of some form of behaviour would clearly be enough of a reward for someone to warrant the idea that they are in Heaven, we have a clear demonstration that the behaviour in question is really worth doing, i.e. virtuous. As an example of Dante's method, we can consider the treat­ ment that Dante gives to St Thomas in Paradise. Thomas is singled out and rewarded for his wisdom, which is not particularly original on Dante's part, but what is original is what the rewards are. Firstly, each soul in Heaven is put in some specific location and

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Thomas's specific location is on the Sun. That is (and the following

formulation of being on the Sun is consistent with how Dante formulates it, i.e. he does not dwell on how hot it would be there),

Thomas is placed in an environment where the light is astound­ ingly bright. The obvious point is that, even as we can appreciate how seeing with this level of clarity could be pleasurable, we can also see that this is not just an arbitrary reward for being wise. It is

instead one of the rewards that being wise can give to people: being wise can let them see things very clearly. Furthermore, Dante uses the same idea, that what would really

be rewarding (Heaven) to a wise person would be to be able to be

even wiser than he was in real life in some of the more specific

activities that he gives to St Thomas in Heaven. The most well­

known example is that he allocates to Thomas, a Dominican, the task not of praising his own order but of praising the order with

which, according to the conventional view, the Dominicans would

be said to be in disagreement, namely the Franciscans. He then also assigns to him the task of developing this praise of the Franciscans into a criticism of

his own

order. If we can see both of

these activities as potentially rewarding, as we presumably can via

some notion like the joy of being able to see the nature of things so

clearly that one would not even be led astray by the biases that would seem to be inevitable such as those induced by our very own identity, e.g. Thomas's Dominican identity, which would

seem to naturally prejudice him against Franciscans, we can prob­ ably also see that the reward in this case is surely not just a pay-off,

after the fact, for being wise. The reward is recognisable as a consequence of being wise. Finally, the activity of praising Siger can be seen as another example of the same idea. Here Gilson's formulation of how this act both is and is not characteristic of Thomas is helpful: It is quite true that the Thomas Aquinas of history would never have undertaken to eulogize Siger in the way in which Dante makes him eulogize him . . . I do not for a moment question such an assessment of the Thomas Aquinas of history, but this

was the part of his make-up which he had to leave at the gate of the

Paradiso

before he could enter.15

If Dante is saying that this would be Paradise for Thomas, one

thing he is saying is that it would have been pleasurable if he could

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have done this and we can see this, again, as the pleasure of being able to see things clearly, the clarity here extending to the point of being able to recognise worth even in one who, by conventional definitions, seems hostile to oneself. And, as above, besides being able to see this as rewarding, we can also see it as wisdom. Thomas is rewarded just by being allowed to do what he does anyway, with the only change that makes it Paradise being that he is even able to do it in ways we could recognise as difficult in ordinary life, here to do it with someone who, via the accidents of ordinary life, we would be almost compelled to see as our enemy. How, though, could this sense that, if something really is virtu­ ous, it must have pleasurable consequences associated with it, e.g. for the potential virtue of wisdom the pleasure of seeing things clearly, be utilised for reflecting on the virtuousness or not of a given piece of behaviour in real life once we recognise, as we must if only because of our exposition of the life of Siger, that at least apparently virtuous actions, e.g. Siger's pursuit of truth, can be associated with negative consequences, e.g. incur· :ng the wrath of others? The key here would be some willingness to engage in honest reflection about whether the real-life negative conse­ quences are better seen as what the action is creating or as real accidents rather than inevitable features of the behaviour. We recognise, of course, that there could be fine lines, fundamental ambiguities, etc. here, but we would still predict that the method really could help one distinguish virtue from wrongdoing when all that might be immediately evident is that the actor is certainly suffering for or from something. Thus, we can briefly apply the method to Siger by returning to Gilson's description of his charac­ ter. So if Siger had not behaved in all the ways Gilson told us that he actually did behave: if he was an extremist, if he did take delight in dissension, if he did actively seek conflict, then, even though the real-life outcome might have been the same wrath on the part of others, in this instance, as it would now become much harder to see the consequence as an accident, we would therefore be much more inclined to treat the episode as teaching us something about what is not virtuous, i.e. something like a love of mischief, rather than something about what really is virtuous even though immedi­ ate or even long-term, real-life reactions could cloud the issue. The view of justice emerging here could shed new light on some current debates. Several thinkers, from differing intellectual tra­ ditions, have been arguing for a reassessment of the view that

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justice is even a virtue that is helpful for our dealings with human action in social life. Arendt, for example, has suggested that, in

view of the inherent unpredictability she notices in action, what

viable social life really requires is not so much justice as forgiveness. 16 And, in a similar vein, Sandel suggests that in a truly healthy community something like friendship might actually be a

more important virtue than justice.17 What we would suggest is that, once one appreciates how being just to people can include not just punishing them for their sins but also, as Dante does to Siger,

Thomas, and all the other characters in Paradise, differentiating them from any unfortunate circumstances that could mislead us

into underestimating them, we can perhaps see both how being just could be a kind of friendship or possibly forgiveness, but also

how to be able to be just (in the sense developed in this work) might

have more to offer than, for example, sheer forgiveness. The

difference is that if we only forgive, say, Siger, we are just releas­ ing him from responsibility for his actions whereas, in being just to

him we are, more, coming to better see those same actions by

freeing them from their possible overidentification with some of the circumstances in which they happened to have been produced. Gilson makes a point that is relevant to this issue in his dis­

cussion of why, again to the confusion of some commentators, Dante has a character who strongly differed with someone in real

life praise that person in Paradise:

The two can live together and play their parts in Dante's Para­ dise only because, when they entered it, they left their earthly

differences behind them. That is not such a bad conception of Heaven; yet it is not an adequate one. Even to enter Dante's Heaven, positive credentials are needed. 18

Formulating Gilson's points here in our terms, we could say that, if Dante merely made Heaven the place where earthly differences are forgotten (which, as Gilson rightly points out he does not do), he would then be offering the kind of release from the circumstances

of life that we would associate with forgiveness. What such for­

giveness would fail to leave people with, though, are any 'positive credentials', since, in forgiving people, we are in effect saying that

what they have done is immaterial. Justice, by contrast, would be more the idea that what they haw done really does matter but that we must be sure we actually know

what

they have done and we

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could not have an at-all-adequate sense of that until we can see what they have really not done because it was just visited on them.

'I forgive you for being an Averroist' is different from 'I can see how you were a great deal more than an Averroist even though that

is not to deny that an Averroist is one of the things you were.' The

latter conclusion, we would say, would only be within the realm of . possibility for someone with an interest in justice rather than just sheer forgiveness.

Moreover, we could also say that sometimes not only the person

but also the circumstances could come to be better seen or appreci­ ated via the attempt to be just. Still focusing on the same example, another way to interpret what we have already said about Dante's treatment of Siger is that, besides asking us to better appreciate Siger, he is also asking us to see the circumstances of Averroism better by, for example, coming to realise that, in its time and place,

it was the only way in which someone who tried to combine a

belief in faith and reason could sustain both those beliefs. Here, in attempting to be just, instead of differentiating Siger from his circumstances, we are better able to relate him to those circum­ stances, now by seeing how some aspects of those circumstances,

e.g. the standard association of Averroism with hostility to St Thomas, are more an accident of history than what at least the best representatives of that tradition were really concerned with at the time. Here again, now in relating someone to their circumstances,

as before in differentiating, we are returning to the idea that attempting to use justice in one's reflections can have cognitive impact. It can help one to see a person, e.g. Siger, more clearly, as

in the idea that he was not the average Averroist, it can also help

one to see a circumstance, e.g. Averroism, more clearly, as in the idea, a typical achievement of someone letting attempts to be just

influence their reflections, that we see Averroism not just in the

light of current prejudices but in the light of the realistic options that would have been available in its own time.

Another debate concerns an aspect of what it is to be moral, to

behave in ways that are good and evil. There is an important

intellectual tradition which argues that what we really mean by 'good' behaviour is behaviour that society as a whole requires of each of us for order and harmony. By implication, what is called 'evil' behaviour is what each of us would really most like to do but

which, alas, we cannot do because of its implications for society as a whole. In this image, anything good would never be scmething

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we would, if left to our own devices, voluntarily choose, and evil behaviour is what each of us would really find desirable and which we are held back from only because various circumstances make it impractical.19

Part of the irony in what we have been discovering in this chapter lies in how great a departure we are making from the

image of what would be good as what we do not really desire but

cannot avoid and evil as what we would really want to do. The inspiring irony is that Dante shows that the opposite is, if any­ thing, more accurate. Good or, in other words, virtuous behav­

iour, cannot be simply what we would prefer to avoid were it not

for the threat of punishment, if it can be demonstrated, as we would argue we did above; that, far from hoping to avoid good behaviour, the most rewarding state with regard to such behav­

iour, i.e. Paradise, would be one in which we were allowed to do the behaviour even more than real life makes possible. Similarly,

evil cannot be what we would choose were it not for the punish­

ments if, again as was suggested above, the most painful punish­

ment comes not when one is caught but just when one freely does the behaviour in question.

v At this point, we should be in a position to offer some general account of why a social actor ought to be interested in justice in the sense in which we are developing the concept, justice as getting and giving what is deserved. There are at least three reasons why it is important to have an answer to this question, two pertaining specifically to our version of justice, the other a generalisation that,

we would say, applies to any theory of justice, whether existing or

potential. Firstly, we could say that we must have an answer to this question because the general tenor of our argument would

seem to fly in the face of more normal, more commonsensical modes of thought. Surely, one would think, instead of people wanting to get what they deserve, it would seem to be more reasonable for everyone to want to get as much as possible; so, we must have some way of dealing with this sort of possible objection. Furthermore, still pertaining to our particular notion of justice, there is also the opposite sort of possible objection. If it is often thought that what would be the ordinary and therefore, perhaps,

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the sensible desire is to want as much as one can possibly get, it is also thought that to be truly extraordinary and, therefore perhaps

really good or virtuous,

is to be utterly indifferent to rewards. So,

another question we must confront here is why we would argue (as we have and will) that even the best of people should want to get what they deserve. The more general reason for addressing the question of why one ought to be interested in justice in our sense is that we would argue that this is a question to which

any

theory of justice must

have some answer. This is because justice is certainly not some­ thing that occurs automatically. People must work to bring it about, to sustain it, etc. and, if the realisation of the theory is inevitably going to involve effort, perceived interest, etc. then clearly any theory of justice depends for its cogency on its having some way of justifying the need and/or desirability

of its

being implemented.

Thus, both Habermas and Lyotard could be said to be doing justifications of this sort. Habermas is doing it by saying that, in ignoring his theory, we are, in effect, ignoring objective realities and, by supporting his theory, we would, by contrast, both not be forced to irrationally ignore objective realities just because of the power of some people and, furthermore, be immune from criticism as we resist power in this way. Lyotard is doing it by saying that, in ignoring his theory, we will be unjustly imposing ourselves on others and, in acting as his theory recommends, we would be freeing ourselves from various unnecessary social constraints. As we have explained in earlier chapters, our theory of justice would not claim either that, in giving or receiving justice, one could avoid criticism or that there would necessarily be more freedom to come and go as one pleased. The question now is what we that is, why would

we say one

would claim,

ought to be interested in justice?

We shall discuss this question in terms of various conceivable sorts of circumstances that could plausibly be affecting an actor. First, if we imagine an actor who is suffering, one obvious advan­ tage in his being treated as he deserves, e.g. in having other people if not present one with mud at least, say, yawn, if one is really creating a boring seminar, is that such treatment gives one the incentive to reflect on the wisdom of whatever one is doing that, for instance, is making the seminar boring. Analogously, if the perpetrator of the action, e.g. the boring seminar, is not treated as he deserves, for example, if out of, we would argue, misguided respect for the conventions, people feign enthusiasm, the problem

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is that he is not really being given the opportunity to see how much boredom he is producing and, therefore, to at least have the chance to reflect on whether a change of his behaviour might be in order. However, still considering the actor who is suffering, we would also have to think about the case when the actor does not actually deserve whatever negative reaction he gets, e.g. where people are yawning just because a seminar topic is not fashionable and so where their yawns are really much more their problem than the speaker's. The issue here would be why it should matter to the speaker that he be treated as he deserves in the sort of case when what he is doing at least appears to be virtuous. In other words, why should anyone care about their unjust treatment by others? Perhaps the most salient problem here is the problem touched on from time to time in the body of this work, namely that it is never an unambiguous matter even to the actor himself whether what he is doing is a good thing to do or not. The problem is that, if the actor is actually being treated less well then he deserves, it can be difficult for him to hold on to the view that it is he and not, say, his audience that deserves better. That is, it is always possible to misinterpret unjust treatment as just treatment in which case, like the victim of the careless admissions officer who mistakenly thinks he ought to be even more careful the next time, one would think that the solution to the problem would lie in modifying one's own behaviour. What this suggests, and contrary to images of the best people as not even needing to be treated as they deserve, is that it is important even to the most virtuous of actors to be treated justly as, to the extent that they are not, there is a natural tendency for them to modify their behaviour in ways it would be better not to do, e.g. to try to become more fashionable than might be really appropriate for one, in order to defend oneself against yawning. Thus far, we have developed the rationale for our theory of justice only with regard to life experiences when the actor is suffering . However, if Dante's interest in Paradise is valid, this implies that the actor also ought to be interested in what sort of rewards he actually deserves. Why would we say one ought to be interested in these? One thing such an interest might give an actor is an opportunity for, in effect, the opposite sort of reflection to that induced by suffering. Instead of gaining a sense of what he might be unintentionally creating, he could gain a sense of the real

for him

limitations of his life, of what is really outwith his power to control

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in that, if he really deserves something, then the issue of whether he actually obtains it or not would be dependent, not on what he does,

but on other,

much more circumstantial factors.

For

example, we might imagine a situation when a professor at a seminar honestly and rightly believes that he really deserves high praise for his performance. This would not, of course, mean that he necessarily thinks that he is going to get the praise but, even though the conclusion would lack predictive power, it would include some sense not just of what the actor thinks should happen but also what he thinks is happening. In this sense, contrary to Lyotard, the actor's prescriptive statements as to what is just can have descriptive significance. What they can describe, assuming that they are just, is not, admittedly, whether something will happen but whether, in their view, they have done everything that would be reasonable for it to deserve to happen. An important issue that this point can help with would be the actor's Oyportunities for reflection on whether actually obtaining something conventionally defined as good would really be good or not. Expressing it in terms of the example, we normally think of high praise, as distinct from yawns, as a good thing and so there would be a natural tendency for actors to try to do everything in their power if, say, they are giving a seminar, in order to obtain this 'good'. However, the problem that could surface if the real situation was that the actor was not likely to get what he deserved, would be that, if he persisted in his attempts to obtain the praise, that would necessarily involve him in doing things that he did not think deserved to be done. This point is often discussed under the heading of what might be meant by rational action. One standard way to decide that some­ one's actions qualify as rational is to determine whether, whatever their goal, they have at least correctly chosen the best means for attaining it. Applying this version of rationality to the example, we would have to say that, if a rational actor desired praise, then he should be willing to do anything necessary to obtain the praise, e.g. to gear his speech in directions which he knows are bound to obtain an enthusiastic reaction from the audience in question. However, the great problem with conceiving rational action in this way has always been that, so long as it is conceded that an actor really wants some goal, e.g. praise, it comes to seem rational to do literally anything that will lead to that goal. This, of course, is the problem of the end apparently justifying the means.

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Another way to put the problem here is that this notion of rationality gives one no way of assessing whether the very thing one is doing, e.g. the speech one is giving, is rational. Given this problem, the idea that the actor would only do what would be reasonable in order to deserve some end he wants rather than actually ensure he gets it is helpful in that it recognises that there can be unreasonable means, i.e. whenever one would be required to do much more or much other than it is reasonable to expect to attain an end, no matter how desirable that end might be. And so it recognises that it might be rational for an actor to eschew those means, no matter how much he might still really desire the end. An expression that actors often use to capture this situation is 'it would not really be worth it', which partly hints at an additional aspect of the fundamentally irrational quality of attempting to gear one's actions only in terms of desired goals, e.g. praise. 'It would not be worth it' probably signifies that there are situations when, if one actually did all that was required to obtain an end, the end would no longer really be at all desirable. Thus, one could see how it would be desirable to attempt to give a seminar that would be

deserving

of praise even from an audience who, one knew, held

views deeply hostile to one's own; but would it be equally desir­ able to attempt to do all one thought necessary in order to

ensure

that that audience would actually praise the talk? At the same time, care would have to be taken not to violate the spirit of what is being intended here, as would be happening if the actor merely assumed (rather than reflected as to whether) he deserved to be rewarded for his behaviour. This sort of mistake could arise if one believed that what is worthy of a reward was only all decided in advance in terms of agreed-upon stipulations. Such a notion would fit with the idea that deciding on virtuous behaviour is nothing but adhering to social conventions for which appropriate rewards have all been worked out in advance. In a way, this would be the opposite excess to immediately assuming that there are objective goods that it would be foolish not to do all in one's power to seek to obtain. The excess here would consist in being too quick to assume that, if some form of behaviour is subjectively defined as good, as virtuous, that automatically means it is the right thing to do in a given situation. We can perhaps see that, again, the kind of reflection that would help one to move beyond this sort of automatic assumption would be reflection on what, if one did something, would deserve to happen.

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This would be an extremely difficult issue to resolve in any actual case but we ought to at least be able to provide general guidelines as to how reflection on this matter might proceed. The key question, which follows from our whole analysis of justice, would be whether, in the light of all he could know about the specific circumstances in which he is acting, the actor would really feel that any absence of fully positive response to his behaviour is just something he cannot control or whether the reaction, the circumstances that ensue, are more accurately seen as grounds for reflection on whether whatever he is doing that is socially defined as virtuous is really as worth doing as it is meant to be. An example of such reflection might provide clarification. If one's lover dies, it would probably be a mistake (even though some people would) to conclude that that meant that love was not as good a thing as it was supposed to be. One could resist such a (we would say false) conclusion if one could appreciate that the lover did not, in any sense, deserve to die and so what happened was just a contingency (like Siger's truth being unwelcome) and so does not provide fully justified grounds for abandoning the idea of love, even though it would be true that, if one did abandon love, in the future one would probably succeed in lessening the chance of similar pain in the future. The logic here is that we really cannot see how the act of love is producing dead lovers and so we can see dead lovers as just an unfortunate circumstance. Therefore, to love is not really to deserve such a fate and so we can continue to believe love is rewarding, i.e. a virtue, even though those who love may continue to suffer in this way. On the other hand, though caring for invalids at home is often conventionally defined as virtuous behaviour and, no doubt, in some senses it is, we can observe that such behaviour, if sustained for extended periods, is often associated with the development of extreme forms of irritation on the part of the carers. Some persons, in this situation, might never reflect on the source of their irritation and so might conclude that, rather like the death of a lover, the rise of irritation is just a contingency, something that in no sense deserves to happen though, of course, this is not to deny that it does happen. In contrast to this, if one did reflect on whether the rise of irritation deserved to happen, one certainly at least might come to the conclusion that it is a justified consequence of the sort of behavioural programme the would-be carer had imposed on himself. That is, it is no accident that, if we set out to be selfless in

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this way, we will end up in a state of irritation. Instead of it just being an accident, the circumstance of becoming irritated is really revealing or, in other words, reflective, of what such caring is. In this case, having an appreciation of the justice of the outcome could give one the opportunity to reflect on whether something that may conventionally be defined as virtuous really is, in the end, all that virtuous. At the same time, we would have to be careful to distinguish this sort of case when some of the possibly unexpected but still, on reflection, justified negative consequences of some behaviour are highly revealing about whether the behaviour in question is as admirable as is ordinarily supposed, from the related but also crucially different case when some of the extremely obvious conse­ quences of some form of behaviour would cause someone who was not really at all committed to the behaviour merely to have a pretext to abandon it. So, we would say that a carer who found himself in the surprising position of shouting abuse at someone he loved might have real grounds for reassessing the virtue of caring whereas someone who would be inclined to object the first time they were asked to go out of their way for the invalid would never have seriously entertained the idea that caring was a virtue in the first place. We would argue that all of the other theories we have consid­ ered would find it difficult to be reflective about behavioural consequences in the way just discussed. An actor operating under principles of justice derived from Rawls, for example, might find it hard to recognise that the carer actually deserves to get irritated because he could point out (accurately) that the carer does not deserve the irritation in the scientific sense that he is the sole cause of the irritation. And, in getting distracted by the various other (we would say superficial) causes of the irritation, e.g. the specific requests by the invalid, we would suspect that the Rawlsian actor would lose the opportunity to reflect on the wisdom of the whole idea of caring. A general point here is that it is something of a reflective accomplishment to even see that one is irritated, and that therefore that is colouring one's judgement. This is one place where we would argue that Habermas's method would have difficulty with an example of this order. It is likely that his actor would become overinvolved in determining the rationality of specific requests, for water, for medicine, etc. and could thereby miss the central point

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that the actor is really only exercised by these problems because of his irritations and that, therefore, there is little likelihood that they could ever be really resolved in the piecemeal way Habermas' s method seems to inevitably encourage. Turning to Lyotard, if one read his ideas superficially, it might appear that he would be more likely than Habermas to offer a more permanent resolution to this sort of problem, in that he would presumably recommend abandoning the situation if one found it so painful. However, the problem with his method would be that,

as we have said, it tends to treat everything as a matter of circum­ stances, of where and when things happen. As it applies to the example, the problem that this approach might lead to is that the actor would always think that the difficulty was just a very par­

ticular one, so it seems likely that Lyotard's solutions would just lead to one perpetuating the same mistakes, albeit in ever­ changing situations and/or with ever-new people. Furthermore,

when we would say that there might not be a serious problem with

one's current behaviour because the consequences are just an accident (as in the example of the death of a lover as we analysed it above), since Lyotard has no way of differentiating the conse­ quences we do produce from those we do not, he might often

erroneously recommend we change something, when in reality

what he would tell us to change is not the real source of the problem at all.

Finally, we might note that the example is also suggestive as to how the theory of justice proposed here would differ from Dante's. We could share his interest in identifying suffering that the actor is

himself producing but still differ from him in assessments of the justification for specific forms of behaviour. For example, Dante, qua Christian, would presumably, were he to analyse caring,

detect differing consequences of it than the ones we have empha­ sised here.

Notes Introduction

1. In this enterprise, Habermas is sell-consciously attempting to dissociate 2.

3. 4. 5. 6. 7. 8. 9. 1

Critical Theory from the pessimistic conclusions of the final work of his teachers, Adorno and Horkheimer. Stephen White, The Recent Work of Jurgen Habermas (Cambridge: Cam· bridge University Press, 1989), p. 23. The fact that we develop a sense of 'desert' that is different from 'scientifically caused' provides one sense in which this work is not utilising the sorts of criteria associated with Positivism. See Self-Reflection and the Arts and Sciences (New Jersey: Atlantic High· lands Press, 1984). Harold Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, New Jersey: Prentice-Hall, 1967). Blum and McHugh, op. cit., p. 12. J. L. Austin, 'A Plea for Excuses', in Philosophical Papers (Oxford: Clarendon Press, 1970). Blum and McHugh, op. cit., p. 146. Blum and McHugh, op. cit., p. 144. Habermas

1 . J. Habermas, The Theory of Communicative Action, Vol. I (Boston: Beacon Press, 1984), pp. 306-7. 2. Ibid., p. 311. 3. Quoted in Habermas, op. cit., p. 16 .

4. The 7' criterion would seem to offer Habermas's actor at least some protection against the inherent irrationality suggested by the need to agree to this request in that Habermas could presumably rightly argue that, unlike getting someone a glass of water, surely, according to current norms, it is not defined as appropriate that seminar participants must get professors dishes of mud. If the seminar participant did attempt to make use of 7' in order to protect himself, the sort of image it brings to mind is of him being able to say something like: 'No. If you want that you will have to get it yourself.' Though it is undeniable that this retort would provide some protection, an issue we might raise about it is whether, if we view the essential problem as resisting arbitrary, irrational, acts, it is really anything like a strong enough response. That is: if someone asked one for a plate of mud, is 'Get it yourself' really sufficient, assuming one has even a fairly minimal interest, not just in self-protection, but in assessing the rationality of outcomes? 5. The exception here is that our method would allow the seminar partici118

Notes

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pant to be more likely to refuse if the water was distant and the professor did not see it as of value for the seminar. 6. In spite of Lyotard's perception of himself as quite different from Haberrnas, surprisingly they have this in common. See Chapter 2. 2

Lyotard

1 . jean-Fran�ois Lyotard, The Postmodern Condition: A Report on Knowledge (Minneapolis: University of Minnesota Press, 1984), p . 24. See also jean-Fran�ois Lyotard and jean-Loup Thebaud, Just Gaming (Minnea­ polis: University of Minnesota Press, 1985). 2. Ibid., p. 24. 3. Ibid., p. 44. 4. Ibid., p. 46. 5. Ibid., p. 46. 6. However, as is indicated below, on the other hand, what is just is partly circumstantial in the sense that it is not created from nothing. 7. Lyotard, op. cit., p. 66. 8. Ibid., p. 17. 9. The point here is that overly-explicit agreements can be counter­ productive by tending to lend a mechanical quality to whatever it has been explicitly agreed should occur. On the surprising lack of a need for such formal agreement, see Harold Garfinkel, Studies in Ethno­ methodology (New jersey: Prentice-Hall, 1967), pp. 73-5. 10. Here we begin to see how justice is not just a matter of producing out of nowhere but of relating to circumstances. See note 6. 11. Lyotard, op. cit., p. 40. 12. The actor would not just open the door because the example stipulates that he says 'Open the door.' 13. It is necessary to be clear that this is only Lyotard's perception because, as we argue below, it is possible that the real effect of his system might be to actually increase the pressure on certain individuals. 14. Probably what we are describing here is one surprising consequence of the revolution in mores for which the 1960s hippy mentality has been responsible. As many have discovered, the idea that anything is acceptable so long as it does not impose on anyone else, intended to liberate us from gratuitous requirements, has often had the unin­ tended effect of giving some people licence to do all sorts of things to other people under the pretext that the other people have never explicitly objected. 15. Lyotard, op. cit., p. 49. 16. Ibid., p. 10. 17. However, it must be also noted that even the beneficial effects might only be temporary because his system does not have any way of insuring or even fostering the possibility that any change be at all long-lasting.

120 3

Notes

Justice

1 . Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cam­ bridge University Press, 1982), p. 75. For the relevant passages in Rawls which confirm Sandel's view, see john Rawls, A Theory of Justice (Oxford: Oxford University Press, 1973), pp. 15, 103-4 and especially pp. 310-15. 2. Ibid., p. 93. 3. Rawls is quoted by Sandel: ibid., p. 94. 4. Ibid. , p. 91. 5. Ibid., p. 169. 6. Ibid., p. 169. 7. See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), pp. 1 75-247. 8. Ibid., p. 233. 9. Dante, The Divine Comedy, 1 : Hell, trans. Dorothy Sayers (New York: Penguin, 1979), pp. 101-2. 10. Ibid., p. 275. 1 1 . Etienne Gilson, Dante The Philosopher (London: Sheed & Ward, 1948), p. 270. 12. Mandonnet, quoted by Gilson, ibid., p . 262. 13. Gilson's translation is from ibid., pp. 257-8. 14. Ibid., pp. 259-60. 15. Ibid., p. 273. 16. Arendt, op. cit., pp. 236-43. 17. Sandel, op. cit., pp. 179-83. 18. Gilson, op. cit., p . 269. 19. For this argument, see especially G. Bataille, Literature and Evil, (London: Marion Boyars, 1985) .

Index accidents 48, 55, 79, 80-5, 101-2, 107 action justified 42-4, 46 legitimate 42-3 unpredictability of 94 anger 71 annoyance 71 Aquinas, St Thomas 99, 105-6, 109 architechue 4 Arendt, Hannah 94, 108 Austin, J. L. 10 Averroism 99, 109 BataiUe, Georges 109-10 blame 89 Blum, Alan 8, ll-12

Gottman, Erving 3 goodness 109-10 Heaven 99-101, 105-9 Hell 96-9 Hume, David 91-2, 94 irony 110 irritation 115-17 job 103 justice see desert cognitive functions of 64, 104-5, 109 see also accidents justification 42-4, 46 knocking

10, 55-7,

75-85

caring 115-16 causation 7, 88, 90, 95 Christianity 96, 117 comedy 11-12, 98 Copernicus SO criminal responsibility 95 critical theory 2

language games 56-7 legitimacy 42-3 local contracts 6, 56, 59 love 115-17 luck 90 Luhmann, Niklas 56-7, 68, 77 lust 96-8

Dante 96-103, 112, 117 version of Heaven 99-101, 105-9 version of Hell 96-9 desert 7, 10, 42, 48, 52-3, 8S-95

Mandonnet, Paul 99 marriage 102-3 Marx, Karl 2, 5 McHugh, Peter 8, 11-12 Mead, George Herbert 3 means 113 Melville, Herman 104 meritocracy 86-7 moderation 93-4

equality 78 ethnomethodology evil 109-10

3, 8

favours 28 forgiveness 108 friendship 97-8, 108

ordinary language philosophy

Garfinkel, Harold 8 Gilson, Etienne 99-101, 106, 108

Parsons, Talcott 3, 5 performative criteria 52, 56

Norman, Richard

121

18, 23 9

122

Index

pleasure 17-28, 31-3, 36--S, 41 positivism 8, 50, 61 postmodernism 4, 80 power 30-48 rationality 3, 1 13-14 Rawls, john 7, 86-9, 91, 94, 116 resources, scarce 91 rewards 112-13 Sandel, Michael 86-9, 91, 108 Sayers, Dorothy 96-7 science 50, 54 self-reflection B--1 2, 55, 70-1, 92 Siger of Brabant 99-101, 106-7, 109, 115

suffering 92, 96-100, 111-12 undeserved 103-4 technology 51 terrorism 5, 80 truth 100-1 universities

76, 102

value 17-28, 31-3, 36--S, 41 virtue 105-7, 115-16 Voltaire 104 Weber, Max 3 White, Stephen 4 Williams, Charles 97 wisdom 105-7