A Feminist’s Retort:An Analysis of Libertarian Justice,
Affirmative Action and Merit through the Views of Iris Marion Young
Matthew Petrocelli
Trish Oberweis
Southern Illinois University Edwardsville
Overview
In its relatively short history, the United States has established an extensive track record of discrimination toward minorities. Although the mark of slavery is obviously the most salient example of its oppression and domination, the emancipation of slaves hardly addressed, much less rectified the problem of equal treatment and opportunity. While blacks were, and continue to be, victims of the cultural mindset of exclusion, women and other ethnic groups clearly suffer a similar form of indignation of this social injustice (Goldberg, 1989). The civil rights movement of the 1960s did much to shed light on this national embarrassment, yet nearly thirty five years after the passage of the Executive Order 10,925 (which forbids discrimination on the basis of race, creed. color or national origin and mandates that affirmative steps be taken to ensure employment of minorities) (Eastland, 1992), there is still heated debate over the issue of affirmative action. Most notably, the practice of preferential hiring and reverse discrimination have surfaced as the rallying points for those who maintain the traditional ideological orientations associated with "liberal" and "conservative" politics. Preferential hiring, which seeks to award employment to individuals on the basis of minority group membership (i.e. blacks, women, handicapped persons, etc.) is tied to reverse discrimination in that its opponents claim it unfairly favors minorities at the expense of more qualified, white males (Goldberg, 1989; Scalan, 1992). As evidenced by the ruling in Regents of the University of California v. Bakke, the position of those decrying affirmative action as discriminatory is not without legal merit. In that decision, the Supreme Court struck down the admissions policy of the of the Medical School at the University of California at Davis which provided that sixteen of its one hundred positions for first year students be allocated strictly for minorities. Allan Bakke (a two time failed applicant) sued the institution and won on the grounds of the admissions policy being too "rigid." (Eastland, 1992; Goldberg, 1989).
The debate over affirmative action is by no means limited to the legal arena, as its justifications are affirmed and contested by philosophers and theorists alike. In its various forms, arguments for and against affirmative action can be libertarian, contractarian, utilitarian, egalitarian or feminist, to name but a few (Rosenfeld, 1991). As engaging all these theoretical perspectives is worthy of volumes, this paper will concentrate on the competing arguments presented by some noted libertarians and the views of celebrated feminist Iris Marion Young in her work Justice and the Politics of Difference. Additionally, scholarly essays by Robert Nozick, Howard McGary, Jr. and Ronald Dworkin will be critically examined through the lens of the Young's position on affirmative action and merit.
Competing Arguments
F.A. Hayek
Hayek's view of libertarian justice rests partially on the notion that individual differences are an important, fundamental fact of society which cannot be denied and that to assert that all people are "equal" borders on the ridiculous. While he maintains that all are equals under the rule of law, it is exactly this condition that results in relative material inequality. In short, Hayek argues that if all have the same opportunities and are not restricted by the state, it only stands to reason that some will attain more due to distinctive, individual characteristics. Consequently, it is unjust for a government to impose laws which attempt to "level the playing field" so that all may have equal opportunity to achieve as "economic inequality is not one of the evils which justify resorting to discriminatory coercion or privilege as a remedy" (1992:29). Hayek goes on to insist that economic prosperity is a desirable trait and that the source of that prosperity should not be called into question. If one is born into material wealth, then this is simply another characteristic which defines the constitution of that individual; no more or less than intelligence or physical attractiveness is passed along from parents to offspring.
While Hayek concedes that all should have equal opportunity to achieve success and that this opportunity should be ensured by the state, he argues that this not the practical reality of contemporary society. Rather, the state now takes it as its obligation to mandate that everyone has an "equal start and the same prospects" (1992:33). What this implies is that the state restructure opportunity so that even those individuals who are not "equal" in terms of abilities will have the same access to portions as those who are eminently qualified by virtue of education or individually crafted skill, which is neither fair nor consistent with the principles of freedom. He glosses over the educational advantage the wealthy have by virtue of their superior resources, arguing that society will never be able to rectify the fact that some will always have greater access to a superior education due to wealth. Moreover, this is a desirable state of affairs and coercive interference by the state to solve the dilemma will not lead to radical change.
The last major point that Hayek makes deals with merit, which he succinctly defines as, "attributes of conduct deserving of praise"(1992:34). Hayek develops the concept of merit to mean the effort an individual expends in the attainment of a goal. While trying hard and making every possible effort to succeed is a commendable trait, it hardly qualifies as the criterion by which rewards should be allocated. Instead, Hayek argues that our society is one which revolves around the results one achieves, and it is those tangible fruits of labor which are to be recognized as deserving of compensation. Accordingly, any advancement in society should be based on the "judgment of some superior"(1992:38) who critically evaluates not only the effort, but more importantly the results attained by an individual worker.
Young's Rebuttal
Hayek makes a seemingly solid argument against the institution of affirmative action which hinges on three crucial points; first, that individual difference must be recognized and celebrated; second, that government interference is undesirable and unwarranted in negating these traits; and lastly, that advancement in society should be outcome based, as measured by the those in position to evaluate. Yet Hayek himself places a caveat at the outset of his essay which he fails to address throughout the course of his discussion. Hayek (1992:30) states that:
the desirability of increasing the abilities and opportunities of any individual does not depend on whether the same can also be done for others - provided, of course that others are not deprived of the opportunity of acquiring the same or other abilities which might have been accessible to them had they not been secured by that individual (emphasis added).
It is here that Young would take most notable exception to the argument, although it can be attacked on other fronts also.
The "increase in the abilities and opportunities" that Hayek alludes to is problematic in that there is no way to assure that others have not been denied the same opportunity to achieve or acquire same. In fact, Young argues that it is nearly impossible for nonprofessionals (defined as those who work jobs requiring "task execution" as opposed to "task design") to secure the desired positions within an organization due to the embedded hierarchal structure which characterizes most corporate entities. Nonprofessionals, in effect, are caught in a vicious circle perpetuated by a society dominated by white males who systematically oppress the minorities who usually occupy task execution positions. This is the case for several reasons. Primarily, entrance into the professional ranks is dictated by qualifications made by those who are already in a position of power. Not surprisingly, these "qualification makers" are normally white, heterosexual males who are subject to bias stemming from a long history of associating what is "normal", and hence desirable, on the physical features and cultural characteristics of the white male. Consequently, qualifications for a certain position reflect this bias, which puts other white males at a distinct advantage over minorities. This aforementioned bias is present in everyday interaction with women and people of color. If those in a position to make hiring and promotion decisions are imbued with conscious and unconscious bias toward minorities, it is then reasonable to assume that the chances for discrimination in the selection and advancement process is present, if not prevalent.
Young would take issue also with Hayek's assertion that results as determined by "some superior" are the true measure of one's relative worth to an organization. Young argues that, given today's highly technical modes of production, evaluating individual performance and subsequent accomplishment is extremely difficult for a variety of reasons. First, the complex nature of most jobs make it near impossible to single out all the associated tasks of a particular worker. Second, given the integrative nature of most production oriented jobs, it is difficult to identify the contributions of an individual worker. Lastly, highly centralized organizations characterized by many layers of management cannot effectively evaluate employees due to the fact that often times, the manager (or evaluator) has never actually participated as a worker and is not fully aware of the entire gamut of responsibilities that his or her subordinates must perform.
John Hospers
In The Libertarian Manifesto, John Hospers offers a strong rebuttal of the welfare state. Yet before advancing into his major premises, it is necessary to explain how his argument relates to affirmative action. Hospers vehemently asserts that among the most basic and unalienable rights of man is that of property. He argues "property ...does not mean only real estate; it includes everything you can call your own-your clothing, car, jewelry, books and papers"(1992:43). For the sake of the argument at hand, it is submitted that Hospers would not disagree that "property," in this broad sense, also includes a job.
Making that assumption, Hospers begins his discourse with the three basic elements of libertarianism; specifically that:
- No one is anyone else's master, and no one is anyone else's slave
- Other person's lives not yours to dispose of
- No human being should be a nonvoluntary mortgage of the life of another (1992:41-42).
It follows that no one in a society has the right to enslave another for any reason, by force or otherwise. On the second proposition, Hospers alludes to the fact that the resource of another person, be it monetary or in the form of labor, are not to be used at the discretion of another. What persons earn and what they choose to do with those earnings are their own business and not part of the public domain. The last pillar of the libertarian thesis relates to the former, in that the government has no claim to the earnings or profits of the individual citizen.
Hospers argues that the only legitimate role of government is that of a retaliatory agent, whose sole purpose is protect citizens against transgressions of their rights to life, liberty and property. The government has no right to interfere in the day to day interactions of its citizens and most certainly has no business dictating that a gainfully employed individual should be somehow socially responsible for those who are less fortunate. Hospers appeals to the example of an unemployed person to drive his point home stating that:
since you have initiated no aggressive act against him, and neither purposely nor accidently injured him in any way, you should not be legally penalized for the fact of his unemployment (1992:48).
Hospers closes his argument with the claim that needs and desires do not constitute rights in society. The right to a job is not a guarantee, and even if it were made so, why should an employer be obligated to hire a certain individual? Here, Hospers takes the role of employer advocate and states that the right of the employer to hire whom he or she wishes supersedes the rights of an individual to a job. Lastly, Hospers asserts that a society free of governmental restraints would flourish; characterized by high employment and rates of production.
Young's Rebuttal
Essentially, Hospers demands that people be left to their own devices without any constraints on their liberties. He simplifies his positions by stating "each human being has the right of all other human beings to live life as he chooses, compatibly with the equal right of all other human beings to live their live as they choose" (1992:43).
But what if human beings are not afforded the right to live life as they choose? What if, in a structured workplace which they had no part in designing, people are trapped by dead end jobs with no possibility for advancement? It is exactly these concerns that are raised by Young in her discussion of affirmative action and merit.
In order to understand how Young effectively counters the argument presented by Hospers, it is necessary to detail the roots of her contentions. Young begins by stating that the two major assumptions of institutional organizations include (1) a hierarchal division of labor characterized by many low income, low growth positions and a few high income, promotionally oriented jobs and (2) positions within these organizations are granted according to merit (i.e. the most qualified individual will advance). Young maintains that since "impartial, value neutral scientific measures of merit do not exist"(1990:193) the validity of the organizational structure itself is questionable. Since decisions about advancement, or even the criteria for promotion for that matter, are suspect based on the merit principle, it is highly likely that minorities will be subject to the white male bias and prejudice discussed earlier in this paper. Hence, it is proper to institute a system of affirmative action and preferential hiring to ensure that women and people of color receive a fair chance to succeed.
But Young takes this argument one step further and it is here that she cuts out the legs from beneath Hospers' claims. Young asserts that feminists are remiss in trying to present affirmative action as a nondiscriminatory practice, as she concedes that preferential hiring most certainly favors one group over another. This is, by definition, discrimination. Instead of focusing on affirmative action as a means of combating discrimination, Young suggests that it more appropriately subverts oppression, which is the true enemy of minorities. Oppression, as defined by Young, contains the elements of domination, exploitation, and powerlessness. Domination refers to "persons having to perform actions whose rules and goals they have not participated in determining, under institutionalized conditions they had no part in deciding" (1990:218). Exploitation is defined as "any relationship in which the results of the energies of one group systematically benefit another without reciprocation"(1990:218) and powerlessness is "the situation of having little or no authority or autonomy in most aspects of one's life, especially one's work"(1990:219). If Hospers is serious in his contention that the libertarian perspective has as its fundamental grounding the right to be neither slave nor master and that others lives are not to be disposed of, there seems to be an inherent contradiction in his assertions and his calling for government to take a back seat in the affairs of citizens. There is no clearer definition of slavery than the condition of being dominated, exploited and powerless to stop it. If the government does not step in to aid in halting such practices, who, then, has the necessary authority and resources to do so? Young concisely brings her argument to a close by stating that "if discrimination serves the purpose of undermining the oppression of a group, it may not only be permitted, but morally required" (1990:197). It would appear that this consideration of morality is severely lacking in Hospers' version of libertarian justice.
Tibor Machan
Machan sets out to discredit the views of Sterba, whom he believes advocates libertarian support for a welfare state in which individuals are entitled to receive from the government the basic necessities for subsistence. Machan wholeheartedly disagrees with this supposition, as he proclaims that "rights do not entitle one to receive from others the goods and resources necessary for preserving one's life" (1992:65). Machan then develops an argument which is centered around the concept of self determination, as he calls into question the moral responsibility of members of society to care for those who are unable to care for themselves. According to Machan, the instances where people are truly destitute are few and far between, and that to encroach on the basic right of property of those who are productive members of society (through theft of property or forced welfare) is tantamount to an invasion of "moral space" (1992:67); in essence, it victimizes those who have carved out their niche in life through hard work and achievement because providing for others necessarily requires relinquishing some of their earned resources.
Further, Machan seriously questions whether individuals "lack the opportunities and resources to satisfy their own basic needs" (1992:69) and wonders if those who make claims for social assistance "have tried all the means available to them that libertarians regard as legitimate for acquiring such resources" (1992:65). He answers his own question by proposing that the "truly needy" (1992:69) are not the norm in society. Instead, those calling for aid are either lazy, unmotivated individuals who seek a "shortcut to earning a living" (1992:68) by preying on those with legitimate means of life support or those who have failed to prepare for the difficulties of life by dropping out of school or settling for a low paying job without concern for adequate financial planning. Machan concludes his invective by stating that if people are in need of assistance, the proper approach for attaining aid is asking for help, rather than seeking coercive measures to ensure that they receive what they need.
Rebuttal
Machan's views are similar to that of Hayek and Hospers in that he fails to see that opportunities are not equally distributed in society and that minorities are often times restricted from inclusion due to bias and prejudice. His line of reasoning is as follows: individuals have not exhausted all possible means of achieving success, so they cannot be considered deserving of help. If they are not deserving of help then other members of society have no moral or legal obligation to assist in their survival. If some members are deserving of help, they should not seek coercive measures to ensure their survival, but rather ask for help and rely on the basic good nature and generosity of those with expendable resources. The basic premise of this argument is flawed in that Machan asserts that the majority of society who seek reparations for past injustices in the form of affirmative action or welfare are individuals who have not exerted the required effort to succeed in a competitive environment; in short, they are not trying hard enough. Young would most certainly characterize this supposition as preposterous. Would Machan have us believe that the bulk of the working class, who are stuck in menial labor positions without the resources or opportunity to attain the skills to advance, are basically lazy? Surely, this is not the case and the reasons (according to Young) that many minorities are structurally unable to advance has already been well documented in previous sections of this paper.
A more disturbing aspect of Machans' argument follows from his insistence that those who are in need of aid, but not necessarily entitled to it, must subserviently ask for assistance. Granted, he does not recognize that women and people of color may be systematically oppressed and excluded from the conventional means of achievement, but his blatant disregard for the necessity of reparations in a just society can have far reaching effects. While Young expertly addresses the need for affirmative action on several different fronts, she only alludes to another aspect of the reparations requirement which is more thoroughly handled by Howard McGary, Jr. in his essay Reparations, Self Respect and Public Policy.
McGary begins by stating that there is a history of deep seated prejudice against minorities and that the social injustices that have been cultivated over time have led to "feelings and emotions ranging from anger to self doubt" (1989:283). While these feelings are certainly cause for alarm in and of themselves, discrimination has propagated an even more serious emotional consequence; resentment. McGary claims that resentment is of particular importance because it signals to an individual that he or she has been the victim of unjust and inequitable treatment. If resentment is allowed to go unchecked "it can lead to psychopathology or to a disrespect for the institutions...which failed to prevent the injustice" (1989:283). In order to correct an individual's feelings of exclusion, two types of reparations must be made. The first is substantive reparations, which are monetary or material awards given to individuals in an effort to recompense them for past injustices or exclusion from certain opportunities. Affirmative action would fall under this heading, as it is only fair and just that those who have been historically excluded from certain jobs and positions of authority have the right to compensation. The next type of reparation is one of admission, in that it is morally necessary and required that oppressors admit their past indiscretions in order to dispel fully the feelings of resentment experienced by those discriminated against. McGary maintains that it is only through the admission of past error by oppressors that minorities can assume a posture of respect consistent with that of a "moral equal" (1989:285).
If one assumes that McGary is correct in his assertions, then Machans' position is even more troublesome. Machan states that the "needy" (more likely the oppressed) must ask for the assistance they require. This hardly constitutes an admission of past injustice on the part of the powers that be. As evidenced by the affirmative action movement which is still questioned and met with heated resistance on the part of political conservatives in government, those in authority are doing little to quell the rightful resentment of women and minorities who have experienced centuries of discrimination. While affirmative action programs have made strides in assuring that the first requirement of McGary's criteria for reparations are met, they fall short in addressing the underlying, and arguably more important issue, of signaling to women and people of color that they are equal moral agents in society, with the same rights, privileges and access to opportunity as the dominating class. Unfortunately, this is not the case and American society is more reflective of the state proposed by Machan, where the opportunity for good jobs and advancement is defined as charity.
The topic of reparations, in light of affirmative action and libertarian justice, can be further examined through the work of Robert Nozick. It is curious that Nozick, who is considered by many to be the "chief contemporary advocate" (Rosenfeld, 1991:52) of the libertarian discipline, seems to advocate a system of reparations that takes an ideological detour from the thoughts of the libertarians presented in this paper. His principle of rectification supports the views of Young in terms of affirmative action and bolsters her argument accordingly.
Nozick's entitlement theory is historical, rather than pattern based and maintains that three conditions must be met in order to ensure that an individual's accumulations are consistent with justice:
- The Principle of Justice in Acquisition: an individual is entitled to anything acquired from the state of nature so long as he or she acquires it without coercion.
- The Principle of Justice in Transfer: an individual is entitled to transfer a holding, so long as it was acquired without coercion and he or she is not being coerce to transfer same.
- The Principle of Rectification: where there is injustice in the original acquisition or transfer, one should reinstate the state of affairs which would have occurred had there been no injustice (Nozick, 1974).
It is Nozicks' theory of justice in holding that lays the groundwork for his subsequent support of affirmative action. If Nozick indeed maintains that a holding is only just if it is acquired without coercion, then one must examine the types of coercion that exist in society. Of course, Nozick straightforwardly points to a physical assault in which items are taken at the expense of the victim. But what of the type of coercion that exists when one is robbed by acts of discrimination? It cannot be denied that excluding an individual from participating in an arena which one desires is clearly limiting competition so that others may succeed. More specifically, if women and people of color have been systematically oppressed and excluded from competing for scarce resources (such as high paying jobs) then it is certainly the case that white males who have enacted the domination are guilty of coercion. Hence, their "holdings", or jobs, have come about through unjust means and are not consistent with Nozick's view of a justice in acquisition (Rosenfeld, 1991)
This leads to the principle of rectification which calls for “measuring the effects of past injustices...configuring present holdings...(and) reallocating holdings to the extent necessary to eliminate the difference" (Rosenfeld, 1991:62). Again, agreement on whether or not this formula should be applied to an affirmative action scenario rests on whether or not one accepts the presuppositions of Young, but even the most staunch conservatives would be hard pressed to deny that there is hard evidence of historical discrimination in this county. Consequently, Nozick's theory of entitlement provides strong theoretical support for Young's advocacy for preferential hiring, in that it begins to redress the "unjust holdings" that have characterized the employment situation in the United States yesterday and today.
Competing Rights
The disparity between the libertarian perspective and contemporary feminist theory (as espoused by Young) stems from the underlying issue of rights in a society, and how competing claims for justice should be resolved. The ideological clash between the status quo and oppressed minorities is thoughtfully examined by Ronald Dworkin in his work Taking Rights Seriously.
Dworkin's resolution of the competing rights argument rests on the assertion that a society must recognize both the legal and moral rights of an individual. While legal, or Constitutional, rights are generally clear, the issue of moral rights is a bit more opaque and must be understood through the concepts of human dignity and political equality. Dworkin defines human dignity by offering its antithetical condition in that "there are ways of treating (a person) that are inconsistent with recognizing him (or her) as a full member of the human community, and...that such treatment is profoundly unjust" (1977:198). Political equality exists when "the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves" (1977:199). Dworkin then argues that there is no fundamental difference between legal and moral rights and that it is the responsibility of the government to ensure that all are entitled to both the former and the ladder.
Clearly, members of society who are subject to systematic oppression (especially in the workplace) constitute a marginalized population whose moral rights are violated on a daily basis. Task execution positions which offer little or no hope for advancement are an affront to human dignity in that workers are, in effect, dehumanized and exploited in an effort to maintain the racial and gender status quo and achieve mass production. Similarly, these same individuals are denied their right to equality as they do not have the means or access to battle this cultural injustice.
Like Young, Dworkin argues that when competing rights are at issue (i.e. the legal right of employers to make preferential hiring decisions and moral rights of minorities to attain dignity and equality) it is "the job of government to discriminate" (1977:193). While Dworkin does not specifically mention the policy of affirmative action in his essay, it is submitted that he would most certainly agree with legislative efforts to achieve a balance of opportunity and access in both the workplace and society as he maintains that, "it is the job of governing to define moral rights through statutes and judicial decisions, that is, to declare officially the extent that moral rights will be taken into law" (1977:197). Dworkin asserts that when rights clash, primary consideration must be given to the entities of dignity and equality, as minorities are entitled to both the legal and moral guarantees of rights in a just society. Denying the component of moral rights is tantamount to an admission of partial justice, which is neither fair nor consistent with the structure of a legitimate society.
Conclusion
It should be noted that the libertarian views presented in this paper are not representative of the wide range of ideas that encompass the libertarian theoretical discipline. However, it appears that in an effort to promote individual rights with the least possible constraint on liberties, libertarians are missing a serious problem in contemporary society. Namely, they fail to recognize that there has been, and continues to be, systematic oppression in this country and that the government is the only logical vehicle to enact policies that stem this ugly national condition. Affirmative action is one such program. As Young argues, preferential hiring is most certainly a form of discrimination, but it is clearly a just, moral alternative to allowing domination of entire racial groups and women. Libertarians will argue that affirmative action unduly restricts the rights of individuals and hampers their personal freedoms. Perhaps when the rights of individuals include all members of society, we can return to libertarian arguments and evaluate their merit based on that criteria.
References
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