The Way We Argue Now:Fractured Claimsmaking in a Globalizing World

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Lecture 1:

The Way We Argue Now:Fractured Claimsmaking in a Globalizing World

(此为南茜•弗雷泽09年3月18日在中国社会科学院发表演讲的英文稿,也是北京系列讲座第一场。——《世界哲学》编辑部)

In some contexts, public debates about justice assume the guise of normal discourse. However fiercely they disagree about what exactly justice requires in a given case, the contestants share some underlying presuppositions about what an intelligible justice claim looks like. They share ontological assumptions about the kind(s) of actors who are entitled to make such claims (usually, individuals) and about the kind of agency from which they should seek redress (typically, a territorial state). In addition, the disputants share assumptions about scope, which fix the circle of interlocutors to whom claims for justice should be addressed (usually, the citizenry of a bounded political community) and which delimit the universe of those whose interests and concerns deserve consideration (ditto). Finally, the contestants share social-theoretical assumptions about the space in which questions of justice can intelligibly arise (often, the economic space of distribution) and about the social cleavages that can harbor injustices (typically, class and ethnicity). In such contexts, where those who argue about justice share a set of underlying assumptions, their contests assume a relatively regular, recognizable shape. Constituted through a set of organizing principles, and manifesting a discernible grammar, such conflicts take the form of “normal justice.”[i]

Of course, it is doubtful that justice discourse is ever fully normal in the sense just described. There may well be no real-world context in which public debates about justice remain wholly within the bounds set by a given set of constitutive assumptions. And we may never encounter a case in which every participant shares every assumption. Whenever a situation approaching normality does appear, moreover, one may well suspect that it rests on the suppression or marginalization of those who dissent from the reigning consensus.

Nevertheless, and notwithstanding these caveats, we may still speak of “normal justice” in a meaningful sense. By analogy with Thomas Kuhn’s understanding of normal science, justice discourse is normal just so long as public dissent from, and disobedience to, its constitutive assumptions remains contained.[ii] So long as deviations remain private or appear as anomalies, so long as they do not cumulate and destructure the discourse, then the field of public-sphere conflicts over justice retains a recognizable, hence a “normal,” shape.

By this standard, the present context is one of “abnormal justice.”[iii] Even as public debates about justice proliferate, they increasingly lack the structured character of normal discourse. Today’s disputants often lack any shared understanding of what the authors of justice claims should look like, as some countenance groups and communities, while others admit only individuals. In the same way, those who argue about justice today often share no view of the agency of redress, as some envision new transnational or cosmopolitan institutions, while others restrict their appeals to territorial states. Often, too, the disputants hold divergent views of the proper circle of interlocutors, as some address their claims to international public opinion, while others would confine discussion within bounded polities. Likewise, present-day contestants often disagree about who is entitled to consideration in matters of justice, as some accord standing to all human beings, while others restrict concern to their fellow citizens. In addition, those who argue about justice today often disagree about the conceptual space within which claims for justice can arise, as some admit only (economic) claims for redistribution, while others would also admit (cultural) claims for recognition and (political) claims for representation. Finally, today’s disputants often disagree as to which social cleavages can harbor injustices, as some admit only nationality and class, while others also accept gender and sexuality.

The result is that current debates about justice have a freewheeling character. Absent the ordering force of shared presuppositions, they lack the structured shape of normal discourse. This is patently true for informal contests over justice in civil society, where it has always been possible in principle to problematize doxa–witness the affair of the Danish cartoons, which is better grasped as a species of abnormal discourse about justice than as a clash of civilizations, on the one hand, or as an exercise in liberal public reason, on the other. But abnormality also swirls around institutionalized arenas of argument, such as courts and arbitration bodies, whose principal raison d’être is to normalize justice–witness the dispute among the Justices of the US Supreme Court in a recent death penalty case over whether it is proper to cite opinions of foreign courts.[iv] As such contests over basic premises proliferate, deviation becomes less the exception than the rule. Far from appearing in the guise of anomalies within a relatively stable field of argument, abnormality invades the central precincts of justice discourse. No sooner do first-order disputes arise than they become overlaid with meta-disputes over constitutive assumptions, concerning who counts and what is at stake. Not only substantive questions, but also the grammar of justice itself, are up for grabs.

This situation is by no means unprecedented. Even the most cursory reflection suggests some historical parallels. One prior era of abnormal justice in Europe is the period leading up to the Treaty of Westphalia, when the feudal political imaginary was unraveling, but the system of territorial states had not yet been consolidated.[v] Another is the period following World War I, when nascent internationalisms collided with resurgent nationalisms amidst the ruins of three major empires.[vi] In those cases, absent a secure and settled hegemony, competing paradigms clashed, and efforts to normalize justice did not succeed. Such cases are scarcely exceptional. It is likely, in fact, that normal justice is historically abnormal, while abnormal justice represents the historical norm.

Nevertheless, today’s abnormalities are historically specific, reflective of recent developments, including the break-up of the Cold War order, contested US hegemony, the rise of neoliberalism, and the new salience of globalization. Under these conditions, established paradigms tend to unsettle, and claims for justice easily become unmoored from pre-existing islands of normalcy. This is the case for each of three major families of justice claims: claims for socio-economic redistribution, claims for legal or cultural recognition, and claims for political representation. Thus, in the wake of transnationalized production, globalized finance, and neoliberal trade and investment regimes, redistribution claims increasingly trespass the bounds of state-centered grammars and arenas of argument. Likewise, given transnational migration and global media flows, the claims for recognition of once distant “others” acquire a new proximity, destabilizing taken-for-granted horizons of cultural value. Finally, in an era of contested superpower hegemony, global governance, and transnational politics, claims for representation increasingly break the previous frame of the modern territorial state. In this situation of de-normalization, justice claims immediately run up against counterclaims, whose underlying assumptions they do not share. Whether the issue is redistribution, recognition, or representation, current disputes evince a heteroglossia of justice discourse, which lacks any semblance of normality.

In this situation, our familiar theories of justice offer little guidance. Formulated for contexts of normal justice, they focus largely on first-order questions. What constitutes a just distribution of wealth and resources? What counts as reciprocal recognition or equal respect? What constitutes fair terms of political representation and equal voice? Premised upon a shared grammar, these theories do not tell us how to proceed when we encounter conflicting assumptions concerning moral standing, social cleavage, and agency of redress. Thus, they fail to provide the conceptual resources for dealing with problems of abnormal justice, so characteristic of the present era.

What sort of theory of justice could provide guidance in this situation? What type of theorizing can handle cases in which first-order disputes about justice are overlaid with meta-disputes about what counts as an intelligible first-order claim? In these lectures, I shall suggest a way of approaching questions of (in)justice in abnormal times. What I have to say divides into four parts. In tonight’s lecture, I shall identify three nodes of abnormality in contemporary disputes about justice. Then, in the remaining three lectures, I shall formulate three corresponding conceptual strategies for clarifying these abnormalities. In the last lecture, I shall conclude by considering some implications for the theory and practice of struggles against injustice in abnormal times.

Nodes of Abnormality in a Globalizing World

I begin by sketching a recent dispute over social justice:

Claiming to promote justice for workers at home and abroad, labor unions in developed countries seek to block imports whose production conditions do not meet domestic environmental, health, and safety standards. Organizations representing workers in the developing world object that, in imposing standards they cannot possibly meet at the present time, this seemingly progressive approach is actually a species of unjust protectionism. Debated in both domestic and transnational public spheres, the first position finds support among those who advocate the pursuit of justice through democratic politics at the level of the territorial state, while the second is championed both by proponents of global justice and by free-marketeers. Meanwhile, corporations and states dispute related issues in international legal arenas. For example, a NAFTA arbitration panel hears arguments from a US-based multinational, which contends that Canada’s relatively stringent environmental and labor laws constitute an illegal restraint on trade. The US representative on the three-judge panel finds for the corporation, on free-trade grounds. The Canadian representative finds against, invoking the self-government rights of the Canadian citizenry. The Mexican representative casts the deciding vote; finding for the corporation, and thus siding with the United States, he invokes poor nations’ right to development. At the same time, however, the legitimacy of these proceedings is disputed. In transnational civil society, demonstrators protest against NAFTA, the WTO, and other governance structures of the global economy. Pronouncing these structures unjust and undemocratic, activists meeting at the World Social Forum debate the contours of an alternative “globalization from below.”

This is an example of “abnormal justice.” Traversing multiple discursive arenas, some formal, some informal, some mainstream, some subaltern, the locus of argument shifts with dizzying speed. And far from going without saying, the topography of debate is itself an object of dispute. Offshore contestants strive to pierce the bounds of domestic debates, even as nationalists and country-level democrats seek to territorialize them. Meanwhile, states and corporations work to contain disputes within regional juridical institutions, even as transnational social movements strain to widen them. Thus, the very shape of controversy, uncontested in normal discourse, is here a focus of explicit struggle. Even as they dispute substantive issues, then, the contestants also rehearse deep disagreements about who is entitled to address claims to whom concerning what; about where and how such claims should be vetted; and about who is obliged to redress them, if and when they are vindicated.

The abnormalities are not wholly random, however, as they constellate around three principal nodes. The first node reflects the absence of a shared view of the “what” of justice. At issue here is the matter of justice, the substance with which it is concerned. Given that justice is a comparative relation, what is it that justice compares? What social-ontological presuppositions distinguish well-formed from ill-formed claims? Such matters go without saying in normal justice–as, for example, when all parties conceive justice in distributive terms, as concerned with the allocation of divisible goods, which are typically economic in nature. In abnormal contexts, by contrast, the “what” of justice is in dispute. Here we encounter claims that do not share a common ontology. Where one party perceives distributive injustice, another sees status hierarchy, and still another political domination.[vii] Thus, even those who agree that the status quo is unjust disagree as to how to describe it.

Divergent assumptions concerning the “what” suffuse the example just sketched. There, offshore workers’ economic claims, aimed at dismantling protectionist barriers, which maintain distributive injustice, collide with a territorial citizenry’s political claims, aimed at repulsing neoliberal encroachments, which imperil the democratic sovereignty of a bounded polity. The effect is a bewildering lack of consensus, even among professed democrats and egalitarians, as to how to understand the injustice, let alone how to redress it. The very “what” of justice is up for grabs.

A second node of abnormality reflects the lack of a shared understanding of the “who” of justice. At issue here is the scope of justice, the frame within which it applies: who counts as a subject of justice in a given matter? Whose interests and needs deserve consideration? Who belongs to the circle of those entitled to equal concern? Such matters go without saying in normal justice–as, for example, when all parties frame their disputes as matters internal to territorial states, thereby equating the “who” of justice with the citizenry of a bounded polity. In abnormal justice, by contrast, the “who” is up for grabs. Here we encounter conflicting framings of justice disputes. Where one party frames the question in terms of a domestic, territorial “who,” others posit “who’s” that are regional, transnational or global.[viii]

Divergent assumptions about these matters, too, pervade the example just sketched, which encompasses conflicting frames. There, some of the disputants evaluate Canadian labor regulations in terms of their domestic effects, while others consider the effects on the larger North American region, and still others look further afield, to the interests of workers in the developing world or of global humanity. The result is a lack of consensus as to “who” counts. Not just the “what” of justice but also the “who” is in dispute.

The third node of abnormality reflects the lack of a shared understanding of the “how” of justice. Here the issue is in essence procedural: how, in a given case, should one determine the pertinent grammar for reflecting on justice? By which criteria or decision procedure should one resolve disputes about the “what” and the “who”? In normal justice, such questions do not arise by definition, as the “what” and the “who” are not in dispute. In abnormal contexts, by contrast, with both those parameters up for grabs, disagreements about the “how” are bound to erupt. Here we encounter conflicting scenarios for resolving disputes. Where one party invokes the authority of an interstate treaty, others appeal to the United Nations, the balance of power, and the institutionalized procedures of a cosmopolitan democracy that remains to be invented.[ix]

Uncertainty about the “how” suffuses the argument sketched here. In that case, states and corporations look to NAFTA for resolution, while anti-neoliberalism activists look instead to transnational popular struggle aimed at influencing global public opinion. Whereas the first appeal to a treaty-based regional arena of dispute resolution, the second appeal to a “World Social Forum” that lacks institutionalized authority to make and enforce binding decisions. Here, then, there is no agreement as to how disputes about the grammar of justice should be resolved. Not just the “what” and the “who,” but also the ”how” of justice is up for grabs.

Together, these three nodes of abnormality reflect the destabilization of the previous hegemonic grammar. Today’s uncertainty about the “what” reflects the decentering of that grammar’s substantive understanding of the matter of justice. What has been problematized here is the view that identifies justice exclusively with fair economic distribution. That understanding organized the lion’s share of argument in the decades following World War Two. Subtending the otherwise disparate political cultures of First World social democracy, Second World communism, and Third World “developmentalism,” the distributive interpretation of the “what” tended to marginalize non-economic wrongs. Casting maldistribution as the quintessential injustice, it obscured injustices of misrecognition, rooted in hierarchies of status, as well as injustices of misrepresentation, rooted in the political constitution of society.[x]

Analogously, today’s uncertainty about the “who” reflects the destabilization of the previous grammar’s frame. In this case, what has been problematized is the Westphalian view that the modern territorial state is the sole unit within which justice applies. That view framed most justice discourse in the post-war era. In conjunction with the distributive conception, it organized otherwise disparate political cultures throughout the world, notwithstanding lip service to human rights, proletarian internationalism, and Third-World solidarity.[xi] Effectively territorializing justice, the Westphalian frame equated the scope of concern with the citizenry of a bounded political community. The effect was to drastically limit, if not wholly to exclude, binding obligations of justice that cut across borders. Constructing a set of territorially bounded domestic “who’s,” discrete and arrayed side-by-side, this frame obscured transborder injustices.[xii]

Finally, today’s uncertainty concerning the “how” reflects the new salience of a previously unspoken feature of the postwar grammar. What has become visible, and therefore contestable, is a hidden hegemonic assumption. So long as the lion’s share of justice discourse was governed by Westphalian-distributivist assumptions, there was little overtly perceived need for institutions and procedures for resolving disputes about the “what” and the “who.” On those occasions when such a need was perceived, it was assumed that powerful states and private elites would resolve those disputes, in intergovernmental organizations or smoke-filled back rooms. The effect was to discourage open democratic contestation of the “what” and the “who.”

Today, however, none of these three normalizing assumptions goes without saying. The hegemony of the distributive “what” has been challenged from at least two sides: first, by diverse practitioners of the politics of recognition, ranging from multiculturalists who seek to accommodate differences to ethno-nationalists who seek to eliminate them; and second, by diverse practitioners of the politics of representation, ranging from feminists campaigning for gender quotas on electoral lists to national minorities demanding power-sharing arrangements. As a result, there are now in play at least three rival conceptions of the “what” of justice: redistribution, recognition, and representation.

Meanwhile, the hegemony of the Westphalian “who” has been challenged from at least three directions: first, by localists and communalists, who seek to locate the scope of concern in subnational units; second, by regionalists and transnationalists, who propose to identify the “who” of justice with larger, though not fully universal, units, such as “Europe” or “Islam”; and third, by globalists and cosmopolitans, who propose to accord equal consideration to all human beings. Consequently, there are now in play at least four rival views of the “who” of justice: Westphalian, local-communalist, transnational-regional, and global-cosmopolitan.

Finally, the silent sway of the hegemonic “how” has been challenged by a general rise in democratic expectations, as mobilized movements of all these kinds demand a say about the “what” and the “who.” Contesting hegemonic institutions and frames, such movements have effectively challenged the prerogative of states and elites to determine the grammar of justice. Inciting broad debates about the “what” and the “who,” they have put in play, alongside the hegemonic presumption, populist and democratic views of the “how” of justice.

The appearance of rival views of the “what,” the “who,” and the “how” poses a major problem for anyone who cares about injustice today. Somehow, we must work through these meta-disputes without losing sight of pressing problems of first-order justice. But with all three parameters in play simultaneously, we have no firm ground on which to stand. Abnormality confronts us at every turn.

What sort of theory of justice could provide guidance in this situation? To find a convincing answer, one must start with a balanced view of the matter at hand. The key, I think, is to appreciate both the positive and negative sides of abnormal justice. The positive side is an expansion of the field of contestation, hence the chance to challenge injustices that the previous grammar elided. For example, the decentering of the distributive “what” renders visible, and criticizable, non-economic harms of misrecognition and misrepresentation. Likewise, the de-normalization of the Westphalian “who” makes conceivable a hitherto obscure type of meta-injustice, call it “misframing,” in which first-order questions of justice are unjustly framed– as when the national framing of distributive issues forecloses the claims of the global poor.[xiii] If we assume, as I think we should, that misrecognition, misrepresentation, and misframing belong in principle in the catalogue of genuine injustices, then the destabilization of a grammar that obscured them must rank as a positive development. Here, then, is the good side of abnormal justice: expanded possibilities for contesting injustice.

But abnormal justice also has a negative side. The problem is that expanded contestation cannot by itself overcome injustice. Overcoming injustice requires at least two additional conditions: first, a relatively stable framework in which claims can be equitably vetted; and second, institutionalized agencies and means of redress. Both these conditions are absent in abnormal justice. How can demands be fairly evaluated and injustices be legitimately rectified in contexts in which the “what,” the “who,” and the “how” are in dispute? Here then is the negative side of abnormal justice: amidst expanded contestation, reduced means for corroborating and redressing injustice.

Those who would theorize justice in abnormal times must keep both sides of this equation in view. What sort of theorizing could simultaneously valorize expanded contestation and strengthen diminished capacities of adjudication and redress? Without pretending to present a full answer, I propose to hunt for clues by re-examining the three nodes of abnormality just described. Convinced that they have something important to tell us, I shall devote each of the remaining lectures to interrogating one of them in some detail. In the second lecture, I take up the question of the “what” of justice, followed in the third by the question of the “who” and in the fourth by that of “how.” In this way, I hope to clarify how we should think about justice in abnormal times.

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[i] One aspect of my debt to Richard Rorty will be obvious here: my appropriation of his distinction between normal and abnormal discourse. What may be less evident is the larger inspiration he provided. By his example, Rorty emboldened an entire generation of North American philosophers to refuse the intimidation of professional analytic philosophy, which had seemed so overwhelming, and crippling, in graduate school. It was from Philosophy and the Mirror of Nature that I gleaned the courage to chart my own path in philosophy, to write in my own voice about what I consider truly important. I cannot thank him enough for that. This essay was begun during my fellowship year at the Wissenschaftskolleg zu Berlin, whose support I gratefully acknowledge. Discussions there and at other venues where I presented this work greatly helped me refine the argument. For especially insightful responses, I am indebted to Horst Bredekamp, Vincent Descombes, Rainer Forst, Robert Goodin, Kimberly Hutchings, Will Kymlicka, Maria Pia Lara, Jane Mansbridge, Faviola Rivera, Gabriel Rockhill, Nancy Rosenblum, Philippe van Parijs, Ann Laura Stoler, Eli Zaretsky, W.J.T. Mitchell, and the Critical Inquiry editorial collective.

[ii] Thomas S. Kuhn, The Structure of Scientific Revolutions, 3rd edition (University of Chicago Press, 1996).

[iii] If one were to be strictly faithful to Kuhn, one would speak here of “revolutionary justice.” But given that expression’s associations, I prefer to take my cue from Richard Rorty and speak instead of “abnormal justice.” Rorty distinguishes “normal” from “abnormal discourse” in Philosophy and the Mirror of Nature (Princeton University Press, 1981) and in Contingency, Irony, and Solidarity (Cambridge University Press, 1989).

[iv] For a fascinating discussion of US “importation” of “foreign law,” see Judith Resnik, “Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry,” The Yale Law Journal (forthcoming).

[v] John G. Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization, 47 (1993): 139-174.

[vi] Hannah Arendt, The Origins of Totalitarianism, new edition (Harcourt Brace & Company, 1973).

[vii] Often, moreover, disagreements about social ontology translate into disagreement about the social cleavages that harbor injustice. Thus, where one side sees class injustice, another sees gender injustice, while still another sees injustice that tracks ethnic or religious fault-lines.

[viii] Often, moreover, disagreement about the scope of concern translates into disagreement about the scope of address, that is, about the public in and before which a claim for justice is rightfully debated. Thus, it is typical of abnormal contexts that one party addresses its claims to a territorially bounded public, while others address publics that are regional, transnational or global.

[ix] Often, moreover, procedural disagreements translate into disputes over representation or political voice. Where one party would restrict representation in dispute resolution bodies to states, others countenance representation for NGOs, and still others envision cosmopolitan-democratic schemes that directly represent individuals qua “world-citizens.”

[x] This frame also tended to marginalize claims pertaining to social fault lines other than class, including claims concerning gender, sexuality, religion, and race or ethnicity.

[xi] Some readers have suggested that colonized people never accepted the legitimacy of the Westphalian frame, hence that this frame was never truly normalized. In my view, however, the great majority of anti-colonialists in the post-World War II era sought to achieve independent Westphalian states of their own. In contrast, only a small minority consistently championed justice within a global frame–for reasons that are entirely understandable. My claim, then, is that, far from contesting the Westphalian frame per se, anti-imperialist forces generally sought rather to realize it in a genuinely universal, even-handed way. Thanks to Ann Laura Stoler for forcefully raising this issue, although she will not be satisfied with my answer.

[xii] The Westphalian frame also partitioned public debates about justice along state lines. Channeling justice claims into the domestic public spheres of territorial states, it discouraged transnational public debate on matters of justice.

[xiii] I will discuss misframing in greater detail in section 2.2. below.

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