Disputing the Methods of Justice:Hegemony, Technocracy or Meta-Democracy?

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南茜•弗雷泽  

Lecture 4:

Disputing the Methods of Justice:Hegemony, Technocracy or Meta-Democracy?

(此为南茜•弗雷泽09年3月19日下午在北京大学发表演讲的英文稿,也是北京系列讲座第三场。——《世界哲学》编辑部)

For the past In the previous chapters, I have been elaborating the problematic of abnormal justice. That is my term for the fractured character of political claimsmaking in the present era. In this era, those who argue about justice lack any shared understanding of its basic parameters. Too often, their disputes suppose divergent understandings of at least three things: the ontological substance in which justice consists; the subjects entitled to claim it; and the process for adjudicating their claims. The result of these abnormalities of the “what,” the “who,” and the “how” is a veritable cacophony of justice discourse, whose character is fundamentally ambivalent. On the one hand, abnormal justice has the positive effect of permitting an expansion of contestation; it affords the chance to challenge injustices that the previous hegemonic grammar cast in shadows. On the other hand, abnormal justice has the negative effect of reducing prospects for adjudicating claims; thus, it implies diminished capacities for redressing injustices.

In these preceding chapters, I have sought to develop some theoretical resources that could clarify problems of abnormal justice. In the second chapter, I proposed an account of the “what” of justice that combined ontological pluralism with normative monism. Thus, I sketched an account in which a three-dimensional conception of justice, encompassing redistribution, recognition, and representation, was overarched by the single normative principle of participatory parity. The result, I claimed was an approach that accommodated both the positive and negatives sides of abnormal justice, by providing both the opening needed to entertain ontologically novel claims and the closure needed effectively to redress them. Nevertheless, this argument was not entirely satisfactory. Having arrived, perhaps, at a promising approach to the “what” of justice, I found myself unable to do anything with it, given persisting abnormalities of the “who.” Who, I asked, was entitled to parity of participation with whom, in which social interactions? Absent a suitable way of addressing the “who” of justice, my account of the “what” seems destined to remain without fruit.

And so I turned in the third chapter to my second node of abnormality, concerning the “who.” There, I sketched a genre of theorizing that combined capacities for reflexivity and discrimination. The idea was to ensure both the capacity to problematize existing ways of framing first-order matters of justice and also the ability to distinguish better from worse proposals for reframing them. To enhance reflexivity, I defended the possibility of meta-political injustices of “misframing,” defined as the wrongful exclusion of some persons from the universe of those entitled to consideration in matters of distribution, recognition, and ordinary-political representation. To enhance the capacity to discriminate, meanwhile, I proposed to evaluate claims against misframing by means of the “all-subjected principle,” according to which those obligated to regard one another as subjects of justice in a given matter are precisely those who are jointly subject to the relevant structure(s) of governance. The result, in this case too, seemed initially promising, as the proposal appeared to strike an appropriate balance the positive and negatives sides of abnormal justice, providing both the opening needed to entertain postwestphalian views of the “who” and the provisional closure needed to evaluate them. Like the previous argument, however, this one also failed to satisfy fully. Having arrived, it seemed, at a promising approach to the “who” of justice, I found myself unable to make any use of it, given persisting abnormalities of the “how.” How, I asked, at the close of the previous chapter, ought we to implement the all-subjected principle? By way of what procedures and processes can that principle be applied to resolve disputes about who counts in abnormal times? Absent a suitable way of addressing the “how” of justice, all my reflections to this point are of no use.

In the present chapter, then, I have my work cut out for me. If I am to salvage the preceding work, I must find a way to address the third node of abnormality, which concerns the “how” of justice. What went for the previous two nodes goes for this one as well. Here, too, I seek to accommodate both the positive and negative sides of abnormal justice. Here, too, accordingly, I ask: What sort of justice theorizing can valorize expanded contestation, while also clarifying disputes in which there is no shared understanding of the “how” of justice? Here, too, I offer a two-pronged proposal, which can be stated briefly like this: theorizing suited to abnormal times should be simultaneously dialogical and institutional. Let me explain each part of this two-pronged proposal for addressing the “how” of justice.

For a dialogical approach to the “how”

In order to valorize expanded contestation, a theory of justice for abnormal times must avoid two approaches that have already surfaced in the previous lectures. First, it must suspend what I shall call the “hegemonic presumption.” This is the view that powerful states and private elites should determine the grammar of justice. Although it was not usually stated explicitly, this view effectively prevailed by default in the Cold-War era. In that period, when the Westphalian framing of justice tended to go without saying, disputes about the “who” were sufficiently rare and restricted to be settled in smoke-filled back rooms. Today, however, as social movements contest the Westphalian frame, they are challenging such prerogatives–by the mere fact of treating the question of the frame as a proper subject of broad public debate. Asserting their right to a say in determining the “who,” they are simultaneously problematizing the hegemonic “how.” Above and beyond their other demands, then, these movements are effectively demanding something more: the creation of new, non-hegemonic procedures for handling disputes about the framing of justice in abnormal times. This demand, too, deserves a fair hearing. In order to avoid foreclosing it in advance, a theory of justice for times such as these must entertain non-standard views of the “how.”

Second, a theory of justice for abnormal times must reject what I shall “the scientistic presumption.” We encountered a version of this presumption in the previous chapter, when considering the all-affected principle. Among the proponents of that approach, we noted empiricist-utilitarian philosophers, like Peter Singer, who hold that There we , this understanding of the “how” of justice holds that decisions about the frame should be determined by normal empirical social science, which is presumed to possess uncontroversial facts concerning who is affected by what, and thus who deserves consideration in respect of which issues.

In abnormal justice, however, disputes about the frame are not reducible to simple questions of empirical fact, as the historical interpretations, social theories, and normative assumptions that necessarily underlie factual claims are themselves in dispute.[i] Under conditions of injustice, moreover, what passes for social “science” in the mainstream may well reflect the perspectives, and entrench the blindspots, of the privileged. In these conditions, to adopt the scientistic presumption is to risk foreclosing the claims of the disadvantaged. Thus, a theory committed to expanded contestation must reject this presumption. Without disputing the undeniable relevance of social knowledge, it must refuse any and every suggestion that disputes about the “who” should be settled by “justice technocrats.”[ii]

What other possibilities remain? Despite the differences between them, the hegemonic presumption and the scientistic presumption share a common premise. Both propose to settle framing disputes monologically, by appeal to an authority (in one case power, in the other case science) that is not accountable to the give-and-take of political debate. A theory of justice for abnormal times must reject this monological premise. To validate contestation, it must treat framing disputes dialogically, as political conflicts whose legitimate resolution requires unconstrained, inclusive public discussion. Rejecting appeals to authority, abnormal justice theorizing must envision a dialogical process for applying the all-subjected principle to disputes about the “who.”

Thus, a theory of justice for abnormal times must be dialogical. By itself, however, dialogue is not a solution. As soon as we accept that conflicts concerning the frame must be handled discursively, we need to envision a way in which public debates concerning the “who” could eventuate in binding resolutions. Absent an account of the relation between contestation and legitimate decision-making, we have no way to implement the all-subjected principle, hence no way to process disputes in abnormal justice.

For an institutional approach to the “how”

How should one conceive this relation? One approach, call it “populism,” would situate the nexus of contest and decision in civil society. Thus, this approach would assign the task of applying the all-subjected principle to social movements or discursive arenas like the World Social Forum.[iii] Although it appears to fulfill the dialogism requirement, populism is nevertheless unsatisfactory for at least two reasons. First, even the best civil society formations are neither sufficiently representative nor sufficiently democratic to legitimate their proposals to reframe justice. Second, these formations lack the capacity to convert their proposals into binding political decisions. Put differently, although they can introduce novel claims into public debate, by themselves civil society actors can neither warrant claims nor make binding decisions.

These limitations suggest the need for a second track of the dialogical process, a formal institutional track. This second track should stand in a dynamic interactive relation to the first track. Conceived as one pole of a two-way communicative process, the formal institutional track must be responsive to the civil-society track.[iv] But it should differ from the latter in three respects. First, the institutional track requires fair procedures and a representative structure to ensure the democratic legitimacy of its deliberations. Second, the representatives must be held accountable to civil society via publicity and election. Third, they must have the capacity to take binding decisions about the “who” that reflect their communicatively generated judgment as to who is in fact subjected to a given structure of governance.

What is needed, therefore, are new institutions for democratically mooting, and resolving, arguments about the “who.” Such institutions would be discursive spaces for hearing and evaluating the claims of those who contend that existing territorially based frames unjustly exclude them. But where exactly should such arenas be situated? And who exactly is entitled to be represented in them?

Without pretending to offer full answers, I want simply to underline one crucial point. The institutions envisioned here would exercise the function of meta-political review concerning the boundaries and limits of first-order political institutions. By definition, therefore, they must be situated at a higher, more encompassing level. What is ultimately at stake, moreover, is noting less than the design of the broader, meta-political space within which all bounded political units are necessarily situated. It seems, therefore, that such institutions would assume a sort of meta-responsibility, akin perhaps to judicial review, for the ground rules that govern first-order contests over justice. In principle, therefore, everyone would be subject to them. Thus, if we apply the all-subjected principle to these meta-political institutions, we obtain a clear result. There is no basis for excluding anyone from the circle of those entitled to representation in them. Everyone deserves to be represented by some means or another in the institutions of meta-political review.

The upshot is that abnormal justice requires the invention of new global democratic institutions where disputes about the frame can be aired and resolved. Assuming that such disputes will not go away anytime soon, and may not be susceptible of any definitive, final resolution, the approach I propose views them as an enduring feature of political life in a globalizing world. Thus, it advocates new institutions for staging and provisionally resolving such disputes democratically, in permanent dialogue with transnational civil society.

In general, then, I am proposing a democratic approach to the “how.” This approach promises to remedy the shortcomings of the other approaches I have discussed here. Unlike scientistism, which treats framing questions as technical issues to be decided by experts, the democratic approach understands them as political issues, which can only be justly resolved by a political process. And unlike hegemonism, which conceives the political monologically, as the prerogative of the powerful states, the democratic approach insists that the process of frame-setting be opened to inclusive dialogue. Then too, unlike populism, which neglects the importance of institutions, the democratic approach aims to ensure that the dialogue is both legitimate and efficacious by linking contestation in civil society to accountable and binding decision-making in institutions.

All these considerations speak in favor of the democratic approach to the “how” of justice as a general idea. Yet I would be the first to admit that many unanswered questions remain about this approach. Some such questions are institutional. One of these is how to ensure adequate representation and equal voice for those who claim standing vis-à-vis a given issue but who are excluded by existing territorially based frames. Another issue is how to envision an appropriate division of labor between weak publics, which merely debate alternative frames, and strong publics, which provisionally resolve such debates by taking binding decisions.[v] Yet another issue concerns the relative merits of judicial and legislative institutions for hearing and resolving disputes about the frame; are these better envisioned as “framing courts” or as “framing meta-parliaments”?[vi] A further issue is how to deal with knee-jerk, ideological nationalism, which refuses to enter into good-faith dialogue with those who plead for a postwestphalian “who.” To handle these and related issues requires institutional imagination in the spirit of realistic utopianism.

In addition, the democratic approach to the “how” faces three strong conceptual challenges. One such challenge is the specter of an infinite regress. After all, this approach introduces a new, meta-meta-level question: namely, who should participate in the democratic process of determining the frame. Insofar as the democratic approach requires a second-order democratic “who” or meta-demos, it seems to court a version of “the democratic paradox,” which holds that the boundaries and frames required by democracy cannot themselves be determined democratically, as the demos cannot determine the demos.[vii] Although it is sometimes considered a knockdown argument, I do not find this objection convincing. Whatever force it may have had in the previous era, when the need for a non-democratically determined (Westphalian) “who” was widely accepted, seems to me to have dissipated today, when democratic expectations are higher, territorially bounded “who’s” are contested, and many are demanding a say in the reframing of questions of justice. Because disputes about the frame are unlikely to go away any time soon, we should treat them not only as a challenge but also as an opportunity–a spur to creative institutional thinking. Thus, instead of throwing up our hands in the face of a logical paradox, we should try to envision ways to finesse it, by imagining institutional arrangements for resolving such arguments democratically.[viii]

[Add discussion of Pogge, “How to Create Supranational Institutions Democratically”]

A second conceptual challenge to the democratic approach to the “how” arises from the circularity of the relations between justice and democracy. Insofar as this approach seeks to resolve arguments about the frame democratically, it seems to presuppose as a prior background condition the very outcome it seeks to promote: namely, social arrangements that are sufficiently just to permit all to participate as peers in democratic discussion and decision-making. This objection rightly notes the internal conceptual links between democracy and justice, not to mention the real-world disparities in resources and status that taint existing deliberations that are claimed to be democratic. Nevertheless, the objection applies quite generally, to all democratic processes, including those at the level of territorial states. Just as democrats do not cravenly bow down before this objection at that level, so, too, we should not do so here. Rather, we should try to envision ways to transform what looks like a vicious circle into a virtuous spiral. The idea is to begin by establishing what could be called, with apologies to D. W. Winnicott, “good-enough deliberation.”[ix] Although such deliberation would fall considerably short of participatory parity, it would be good enough to legitimate some social reforms, however modest, which would, when institutionalized, ensure that the next round of deliberation would come closer to participatory parity, thereby improving its quality. This next round, accordingly, would be good enough to legitimate additional, slightly less modest reforms that would in turn improve the quality of the following round–and so on.[x] In the case of this challenge, then, as for one just discussed, the solution is to draw on democracy’s reflexive capacity: its ability to problematize and revise previously taken for granted aspects of its own procedures and frames.

A third conceptual challenge concerns the distinction between the moral and the political. That distinction assumes a sharp guise within the Westphalian frame, which contrasts political obligations, owed to fellow citizens, with moral obligations, owed to human beings as such. The approach proposed here, in contrast, might appear to collapse the distinction, and thus to threaten to moralize politics, by suggesting that all questions of justice should become political in a globalizing world. Or so the argument goes. In fact, however, the objection is misplaced. Granted, the democratic approach entails building new political institutions for handling trans-territorial problems of justice, which appeared to be “merely” moral from the older perspective. But it doesn’t entail that every question of justice becomes political in exactly the same sense. A more likely outcome is that the sharp Westphalian contrast between the moral and the political will give way to a continuum encompassing “thicker,” territorially framed political questions, at one end, and “thinner,” non-territorially framed political questions, at the other. In that case, the result will not be to moralize politics, but rather to nuance it, disclosing a range of different forms of the political. From this perspective, moreover, the sharp distinction between the political and the moral is revealed to be an artifact of the Westphalian frame, which wrongly denied the possibility of transnational political institutions. But it does not on that account follow that that distinction can no longer be drawn. What does follow is that the distinction must henceforth be drawn in a different way. Treated as contestable and subject to revision, it, too, must be adjudicated dialogically. Thus, the question of where and when to distinguish the political from the moral now appears as a political question, subject to democratic debate.[xi]

In general, then, efforts to develop the democratic approach need not in principle be stymied by conceptual objections. I would like to conclude my discussion of the “how” of justice, accordingly, by suggesting that it is well worth the effort to develop this approach in a form that can satisfactorily resolve the outstanding institutional and conceptual problems. Three considerations in particular are worth stressing.

First, by developing the democratic approach we can make significant strides in overcoming the defects of other approaches, as I just explained. Second, by developing this approach we can deepen the connections between justice and democracy. At present our most robust egalitarian theories of postwestphalian justice proceed largely in isolation from democratic theory, while our most ambitious theories of postwestphalian democracy have yet to develop the strongly egalitarian conceptions of social justice that they require as a necessary complement. The democratic approach to the “how” promises to connect these two bodies of political-theoretical reflection, while opposing the current de facto alliance of egalitarianism with technocracy, on the one hand, and that of democracy with nationalism, on the other.

Finally, and most importantly, unless we develop a defensible democratic approach to the “how,” we will never be able to deal satisfactorily with “what” and the “who.” In that case, we will remain mired in apparently intractable meta-disputes that currently prevent us from moving swiftly to redress first-order injustices.

Certainly, much more needs to be said about the design and workings of the arrangements I have sketched here. But in this case, too, the details are less important than the overall conceptual structure of the proposal. What is paramount here is that this view of the “how” of justice combines dialogical and institutional features. As a result, it accommodates both the positive and negative sides of abnormal justice. Thanks to its dialogism, it validates contestation of previously taken-for-granted parameters of justice. Rejecting monologism, it seeks a fair hearing for claims that hegemonism and scientism foreclose. At the same time, thanks to its two-track character, it overcomes the legitimacy and decisional deficits of populism. Submitting meta-claims for the reframing of justice to a process of two-way communication between civil society and new global representative institutions, it envisions procedures for implementing the all-subjected principle in contexts of disagreement about the “who.” Thus, this approach holds out the prospect of provisionally resolving conflicts over the frame in abnormal justice.

But that is not all. By providing a means to sort out meta-problems, this proposal clears a path to the pressing first-order problems with which we began. Coming to terms with injustices of misframing, it simultaneously opens the way to tackling injustices of maldistribution, misrecognition, and misrepresentation. Thus, this approach enables us to envision political scenarios for overcoming or reducing injustice in abnormal times.

Conclusion

It is with the aim of fostering that end that I devised the overall plan of these lectures. So let me conclude by reflecting back on that plan in two final steps. First, I want to summarize my overall argument briefly here. Then, I want to inquire about its deeper political and conceptual implications.

Summary of the argument:

In the course of this book, I have argued that a theory of justice suited to conditions of abnormal discourse should combine three features. First, such a theory should encompass an account of the “what” of justice that is multidimensional in social ontology and normatively monist–for example, an account that submits claims for redistribution, recognition, and ordinary-political representation to the principle of participatory parity. Second, such a theory should encompass a view of the “who” that is simultaneously reflexive and substantive– for example, a view that submits claims against injustices of misframing to the all-subjected principle. Finally, a theory of justice for abnormal times should encompass a view of the “how” that is simultaneously dialogical and institutional– for example, a view that envisions new global representative institutions where meta-political claims can be submitted to deliberative-democratic decision-procedures.

More important than these specifics, however, is the general problem I have outlined here. Under conditions of abnormal justice, previously taken-for-granted assumptions about the “what,” the “who,” and the “how” no longer go without saying. Thus, these assumptions must themselves be subject to critical discussion and re-evaluation. In such discussions, the trick is to avoid two things. On the one hand, one must resist the reactionary and ultimately futile temptation to cling to assumptions that are no longer appropriate to our globalizing world, such as reductive distributivism and passé Westphalianism. On the other hand, one should avoid celebrating abnormality for its own sake, as if contestation were itself liberation. In these lectures, I have tried to model an alternative stance, which acknowledges abnormal justice as the horizon within which all struggles against injustice must currently proceed. Only by appreciating both the perils and prospects of this condition can we hope to reduce the vast injustices that now pervade our world.

Conceptual and political implications

Having summarized my overall argument, let me consider some of its deeper conceptual and political implications. It may have already struck you that my argument combined two different types of inquiry, one diagnostic, the other reconstructive. My first chapter was chiefly diagnostic. There, I characterized the present as an era of abnormal justice, in which the basic parameters of political contestation are up for grabs; identifying three distinct nodes of abnormality, I mapped the contours of a (Westphalian-distributivist) discursive formation in the throes of de-normalization. In contrast, my subsequent chapters were largely reconstructive. In them, I proposed three corresponding strategies for reflecting on justice in abnormal times; noting that our familiar theories of justice presuppose conditions of normal discourse, I sought to develop alternative models of theorizing better suited to contexts in which there is no agreement as to the “what,” the “who,” and the “how” of justice. Given the difference between these two parts of my argument, a question arises as to the relation between them. What conceptual logic and political aspiration links my Zeitdiagnose of the present conjuncture with my attempts at theoretical reconstruction?[xii]

Two possibilities suggest themselves. On one reading, the negative features of abnormal justice are sufficiently disabling of struggles against injustice to warrant efforts at re-normalization. This view stresses the impossibility of emancipatory change in the absence of a relatively stable framework for vetting and redressing claims. Given that premise, the goal should be to reconstruct such a framework for the current conjuncture. The result, were things to go well, would be a new paradigm of normal discourse about justice, premised on new interpretations of the “what,” the “who,” and the “how,” more appropriate to a globalizing world. On this reading, therefore, my specific proposals would be aimed at constructing such a paradigm. The point of the overall exercise would be to develop “a new normal.”

Certainly, one could do a lot worse than devising a new normal able to reframe justice conflicts in forms suited to a globalizing world. Yet there are reasons to doubt that such an approach would be fully satisfying. For one thing, re-normalization risks instating a new, restrictive predefinition of what counts as an intelligible claim for justice, thereby entrenching new exclusions. As a result, it risks closing down prematurely new avenues of contestation, before they have had a fair shot at establishing their plausibility. Finally, the proposal to establish a new normal risks enshrining a fixed set of justice assumptions at a historical juncture when the circumstances of justice are in flux and demand flexibility. For all these reasons, it is worth considering another reading of the overall argument presented here.

The second reading I have in mind envisions an outcome that unsettles the distinction between normal and abnormal justice. Underlining the respective shortcomings of each of those genres of discourse, this reading seeks an alternative model that avoids their defects, while incorporating the best features of each. Unlike abnormal discourse, the desired model would have sufficient structuring capacities to stage today’s justice struggles as arguments, in which the parties confront one another, compelling the attention and judgment of those looking on. Unlike normal discourse, however, the hoped-for model would have sufficient self-problematizing capacities to entertain novel claims about the “what,” the “who,” and the “how.” Combining features of normal and abnormal discourse, the result would be a grammar of justice that incorporates an orientation to closure, needed for political argument, but that treats every closure as provisional–subject to question, possible suspension, and thus to re-opening. Cultivating responsiveness to emergent exclusions, such a model would feature concepts, such as misframing, that invite reflexive self-problematization, with the aim of disclosing injustices that were previously occluded. On this reading, the point of the overall exercise would be neither to revel in abnormality nor to rush to instate a new normal. The point, rather, would be to develop a third genre of discourse that we might call reflexive justice.

The idea of reflexive justice is well suited to the present context of abnormal discourse. In this context, disputes about the “what,” the “who,” and the “how” are unlikely to be settled soon. Thus, it makes sense to regard these three nodes of abnormality as persistent features of justice discourse for the foreseeable future. On the other hand, given the magnitude of first-order injustice in today’s world, the worst conceivable response would be to treat ongoing meta-disputes as a license for paralysis. Thus, it is imperative not to allow discursive abnormalities to defer or dissipate efforts to remedy injustice. The expression “reflexive justice” expresses that dual commitment, signaling a genre of theorizing that works at two levels at once: entertaining urgent claims on behalf of the disadvantaged, while also parsing the meta-disagreements that are interlaced with them. Because these two levels are inextricably entangled in abnormal times, reflexive justice theorizing cannot ignore either one of them. Working at their intersection, and tacking back and forth between them, such theorizing mobilizes the corrective capacities of each to mitigate the defects of the other. In this way, it scrambles the distinction between normal and abnormal discourse. [xiii]

For these reasons, I prefer to understand the telos of my overall argument, not as a new normal, but as a discourse of reflexive justice.[xiv] That reading has two additional implications that are worth considering. The first concerns the well-known opposition in political philosophy between discourse-ethical approaches, on the one hand, and agonistic approaches, on the other. Rightly or wrongly, the first are sometimes portrayed as objectionably normalizing, while the second are often seen as irresponsibly reveling in abnormality.[xv] Without pretending to assess the merits of these charges and counter-charges, I propose that the idea of reflexive justice scrambles this opposition as well. Like agonistic models, reflexive justice valorizes the moment of opening, which breaches the exclusions of normal justice, embracing claimants the latter has silenced, and disclosing injustices the latter has occluded–all of which it holds essential for contesting injustice. Like discourse ethics, however, reflexive justice also valorizes the moment of closure, which enables political argument, collective decision-making, and public action­–all of which it deems indispensable for remedying injustice. Seeking to accommodate both moments, the moment of opening and the moment of closure, reflexive justice views the standard opposition between agonism and discourse ethics as a false antithesis. Refusing to absolutize either model and thus to exclude the insights of the other, it draws on elements of each to fashion a new genre of theorizing for abnormal times.

The second implication concerns the relation between the problematic of abnormal justice and that of hegemony. As is well known, hegemony theory conceptualizes a second, discursive, face of power, alongside that of brute repression. This second face includes the capacity to construct a “common sense” for a diverse array of constituencies, whom the hegemon thereby inducts into a shared political universe. Within that universe, each constituency can constitute itself as a political subject and formulate its interests and goals in a way that is intelligible to others.[xvi] Seen this way, hegemony includes the capacity to define the legitimate universe of political disagreement, while simultaneously constituting the latter’s exterior as a region of unintelligibility.[xvii] The point can also be put like this: by instituting a structuring set of background assumptions, which itself largely goes without saying, hegemony predetermines what will count as a plausible claim for claim for justice–and what will not.

Understood this way, hegemony theory has clear affinities with the problematic elaborated here. In its terms, episodes of normal justice would correspond to periods of relatively secure, uncontested hegemony, in which extra-commonsensical claims remain dispersed, failing to coalesce into a counter-hegemonic bloc. In contrast, episodes of abnormality would correlate with periods of overt struggles for hegemony, in which counter-hegemonic formations achieve sufficient cohesion to problematize what had passed for common sense. Affinities aside, however, the hegemony problematic suggests a different historical account of today’s abnormalities. Through its lens, the latter are traceable less to the subjectless process of “globalization” than to the decline of US hegemony since the collapse of the USSR in 1989. Insofar as US hegemony was based on the Cold War, the demise of that geopolitical order presented a challenge to the (Westphalian-distributivist) grammar of justice that defined “the Free World.” Having failed to articulate a plausible post-Cold-War commonsense centered on the “war on terror,” the US has so far proved unable to perpetuate its hegemony. The result is glaring divergence between the two faces of power: US military supremacy is not matched by any comparable capacity to constitute a shared commonsense that could normalize conflicts over justice. No wonder, then, that justice discourse is undergoing de-normalization and that disputes about the “what,” the “who,” and the “how” are proliferating.

Compelling as this story is, it is not in fact a rival to the one I have developed here. On the contrary, the hegemony perspective complements the problematic of abnormal/normal discourse. Whereas the former views justice discourse historically and strategically, aiming to understand shifts in power, the latter interrogates it philosophically and normatively, aiming to disclose present possibilities for emancipatory change. Thus, far from being mutually incompatible, these two perspectives enrich one another. Like hegemony theory, the abnormal/normal framework acknowledges the historicity and power-laden character of justice discourse. What it adds, however, is an interest in emancipation, an insistence that the grammar of justice be reconstituted so as to enable the subaltern to speak. In this way, the perspective developed here supplies a crucial ingredient of critical theorizing, which hegemony theory taken alone does not provide: the elusive but inspiring aspiration for a grammar of justice that could reveal contemporary injustices for the moral outrages they surely are.

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[i] Nancy Fraser, “Democratic Justice in a Globalizing Age: Thematizing the Problem of the Frame,” op. cit.

[ii] A similar argument is found in Amartya Sen, Development as Freedom (Anchor Books, 1999).

[iii] For one influential variant of populism, see Michael Hardt and Antonio Negri, Empire (Harvard University Press, 2000). For another, less romantic, variant, see recent work by James Bohman, who appears to hold that public-sphere contestation alone can resolve conflicts over the “who,” hence that no cosmopolitan political institutions are needed for that purpose. A similar view is endorsed by Seyla Benhabib, who is in other respects far from populism, but who also appears to put the full onus of resolving disputes about the “who” on “democratic iterations” conducted in civil society. For Bohman’s views, see his “From Demos to Demoi: Democracy across Borders,” Ratio Juris 18,3 (2005): 293-314 and "The Democratic Minimum: Is Democracy a Means to Global Justice?" Ethics and International Affairs 18 (2004). For Benhabib’s view, see her Tanner Lectures in Another Cosmopolitanism: Hospitality, Sovereignty, and Democratic Iterations, ed. Robert Post (Oxford University Press, 2006).

[iv] For a communications-theoretic account of the two-track model, see Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, 1996). For a critique of the tacit Westphalian framing of that account, see Nancy Fraser, “Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Postwestphalian World,” Theory, Culture & Society, 24:4 (2007).

[v] For the distinction between weak and strong publics, see Nancy Fraser, "Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy," in Habermas and the Public Sphere, ed. Craig Calhoun (M.I.T. Press, 1991) pp. 109-142; reprinted in Fraser, Justice Interruptus: Critical Reflections on the "Postsocialist" Condition (Routledge, 1997). See also Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, tr. William Rehg (Cambridge MA: The M.I.T. Press, 1996), pp. 307ff.

[vi] Daniele Archibugi, “A Critical Analysis of the Self-Determination of Peoples: A Cosmopolitan Perspective,” Constellations 10,4 (2003): 488-505.

[vii] For an argument that political frames cannot be determined democratically, see Frederick Whelan, “Democratic Theory and the Boundary Problem,” in Nomos XXV: Liberal Democracy, ed. J. R. Pennock and R. W. Chapman (New York and London: New York University Press, 1983), 13-47. For other treatments of the democratic paradox, see William Connolly, Identity/Difference: Democratic Negotiations of Political Paradox (Minneapolis: University of Minnesota Press, 2002) and Chantal Mouffe, “Democracy, Power and the ‘Political’,” in Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib (Princeton: Princeton University Press, 1996) pp. 245-256.

[viii] For an example of the sort of institutional creativity I have mind, which successfully finesses the democratic paradox, see Thomas Pogge’s fascinating essay, “How to Create Supra-National Institutions Democratically: Some Reflections on the European Union’s Democratic Deficit,” Journal of Political Philosophy, 5 (1997): 163-182.

[ix] Thanks to Bert van den Brink (personal communication) for suggesting this expression.

[x] Some political theorists appear to have in mind something like this idea of a virtuous spiral starting from “good-enough deliberation.” One promising proposal, suggested by Rainer Forst, is to institutionalize a “basic justification procedure” within which arguments about global justice can be mooted, and which can itself be reconstructed on increasingly egalitarian and just terms, as a result of reforms that emerge from, and are validated through, such arguments. So far as I know, Forst has not (yet) envisioned the possibility of applying his idea of a basic justification procedure at the meta-level, to disputes about the frame, when not just the “what” but also the “who” is up for grabs; but I see no reason why this could not be done. See Forst, Contexts of Justice, op. cit. A similar idea appears to inform Jürgen Habermas’s proposal to institutionalize basic rights that point toward the fair value of political liberty, while also allowing that the content of those rights will be unfolded and enriched over time, as a result of ongoing (quasi-) democratic contestation. See Habermas, Between Facts and Norms, op. cit.

[xi] I am grateful to Alessandro Ferrara for illuminating discussions of this issue. For his views, see Alessandro Ferrara, “Two Notions of Humanity and the Judgment Argument for Human Rights,” Political Theory 31,3 (June 2003): 392-420.

[xii] Thanks to the many interlocutors who raised this question, especially Nancy Rosenblum, whose characteristically forceful and crisp formulation made the issue impossible to evade.

[xiii] My current interest in scrambling the distinction between normal and abnormal discourse is prefigured in my earlier exchanges with Richard Rorty. In a 1988 essay [Nancy Fraser, "Solidarity or Singularity? Richard Rorty between Romanticism and Technocracy," Praxis International 8, 3 (1988): 257-272], I noted Rorty’s tendency to align abnormal discourse with “private irony” and normal discourse with “public solidarity”; and I proposed that radical social criticism upset those dichotomies insofar as it was both abnormal and solidaristic. Later, in his 1991 Tanner Lecture (“Feminism and Pragmatism,” op. cit.), Rorty provocatively transgressed his original alignment by reading radical second wave feminism as both abnormal and publicly relevant. In my response (Nancy Fraser, “From Irony to Prophecy to Politics: A Response to Richard Rorty," Michigan Quarterly Review 30,2 (1991): 259-266), I applauded that move, even as I faulted Rorty’s account for individualizing and aestheticizing the process of linguistic innovation in feminism, hence for neglecting the latter’s collective, democratic character. That argument now appears, in retrospect, to presage my present proposal to unsettle the distinction between normal and abnormal discourse.

[xiv] Clearly, this preference for reflexive justice also distinguishes my position from proponents of abnormal discourse, paradigmatically Jean François Lyotard,

The Differend: Phrases in Dispute, tr. Georges Van Den Abbeele (Minneapolis: University of Minnesota Press, 1988). Thanks to Vincent Descombes for the comparison to Lyotard.

[xv] Classic critiques of discourse ethics from the standpoint of agonism include Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge, tr. Geoff Bennington and Brian Massumi (Minneapolis: University of Minnesota Press, 1984) and Chantal Mouffe, “Deliberative Democracy or Agonistic Pluralism?” Social Research, 66, 3 (1999): 745-758. Classic versions of the discourse-ethical critique of agonism include

Jürgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures, tr. Frederick Lawrence (Cambridge MA: MIT Press, 1987) and Seyla Benhabib, “Epistemologies of Postmodernism: A Rejoinder to Jean-François Lyotard,” New German Critique No. 22 (1984): 103-126. For a recent round of the debate, see the exchange between Seyla Benhabib and Bonnie Honig in Benhabib, Another Cosmopolitanism, op. cit.

[xvi] For classic accounts of hegemony, see Antonio Gramsci, Prison Notebooks, ed. Joseph A. Buttigieg, tr. Joseph A. Buttigieg and Antonio Callari (New York: Columbia University Press, 1991) and Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985).

[xvii] For accounts that stress the exclusionary aspects of discursive formations, albeit without reference to the term “hegemony,” see Pierre Bourdieu, Language and Symbolic Power, ed. John B. Thompson, tr. Gino Raymond and Matthew Adamson

(Cambridge MA: Harvard University Press, 1991); Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997), and Michel Foucault, Essential Works of Foucault, 1954-1988, ed. Paul Rabinow (NewYork: New Press, 1997).

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