‘Privileged Givens’ and ‘Privileged Determiners’
Richard Dien Winfield’s analytical paradigm in Reason and Justice and its implications for ‘real justice’
Far and away, the best example of philosophical writing I have ever read is Reason and Justice, by Richard Dien Winfield. There is not one analogy or metaphor in it. There is not one unnecessary word in it. In the very first paragraph he is on a plane of abstract reasoning from which he never departs. Yet, once I was able to get on that plane with him I saw that he was being as coherently concise as it is possible for a writer to be.
It is not the most difficult philosophy I have ever read. Immanuel Kant and G.W.F. Hegel are both harder for me to understand. To be sure, neither is incoherent, but “concise” is not a word anyone would associate with either of those historically important thinkers.
At any rate, the first 160 or so pages of Winfield’s book (in the edition I own) is an analysis of the history of philosophical attempts at understanding what justice must be, from ancient times through the first three quarters or so of the 20th century C.E. (The book was published in 1988.)
He is not a postmodernist (he ‘self-identifies’ as a “neo-Hegelian “) but his analytical technique is a masterpiece of ‘deconstruction’. He surgically extracts the premises at the heart of all (non-Hegelian) attempts at understanding what justice is and reveals their innermost arbitrariness.
For his analytical paradigm Winfield used the terms “privileged givens” and “privileged determiners” to describe those premises. (He of course takes pains, following his analysis of other attempts at understanding justice, to make the case that Hegel’s philosophy contains neither of those.) While, again, he is no postmodernist, those analytical concepts convey the two forms that the ‘foundations’ that postmodernists decry can take.
“Privileged” means that they are arbitrarily imbued with an exalted status. That means in this case that they are taken to be integral to justice without establishing why that status is warranted — or even where they come from.
“Determiners” refer to ontological elements. They can be psychological, and abstract in other ways, but they refer to the ‘human condition’, something taken to be integral to our being as humans living in this world that is also integral to justice.
Any reference to ‘human nature’ in deriving an understanding of justice, such as ‘people are driven by self-interest’ is a privileged determiner. Even a hypothetical determiner, such as the status of ‘people’ in the “State of Nature” of John Locke, et al. and in the “reflective equilibrium” of John Rawls, as well as the structure of what are called ‘discourse ethics’ (e.g., Jurgen Habermas and Bruce Ackerman), is a privileged determiner. Kant’s entire noumenal realm, on which everything related to justice in his philosophy depends, is a privileged determiner.
“Givens” refer to epistemological elements. They are concepts that are taken to be definitive of justice. The ancient Greeks thought that justice resided in ‘living the good life’, meaning in the end whatever the author happened to take to be ‘good’ in that context. The same applies to ‘maximizing the good’ in utilitarianism. Any reference to any ‘first principle’ is a privileged given. A priori ‘Rights’, which are said to have been discovered, not conceived by people, such as “Natural Rights,” are privileged givens. An assertion that all people are morally equal is a privileged given.
Winfield is convinced that Hegel escaped such foundationalism because the starting point of his philosophy (properly understood) as it applies to justice is ‘indeterminacy’: it is utterly undefined. Yet, though I don’t self-identify as a ‘postmodernist’, I don’t see how any person can reason through the operation of an abstract dialectical development without that person’s subjective influences affecting the purported outcome of the process. That makes that outcome as “privileged” as any determiner or given could be. [The same applies to Marx’s attempt to interpret human history as a dialectical process inevitably leading to a universal community of human beings with no private property and (therefore) no social classes.]
Here is a question for readers of this article to (hopefully) think about — and respond to — in a serious way: Can a purported ethic of justice that follows from the observation that human beings have no choice but to effect choices be a determiner of justice that is not “privileged?”
My contention is that it is not privileged because it is not arbitrary. It is not arbitrary because it does not originate as an abstraction within the subjective labyrinths of the author, but follows from an observation within material existence that all people can verify for themselves.
Effecting choices is materially integral to being human. It is intrinsically a part of existing as a human being in this world. As such, it is an inevitable, unavoidable part of our existence that we all experience as such for ourselves. In experiencing it for ourselves we all verify it for ourselves: to accept the validity of that observation we do not have to take any ‘leap of faith’/take anyone’s word for anything.
So I contend that the ethic of justice in question is not arbitrary because its starting point, that observation, is not arbitrary. Since it is not arbitrary, it cannot be said to be privileged.
Another material fact of human existence is that we are social beings: we live together in groups we call ‘societies’. We do now. We always have. If that should ever change, our existence as humans would be fundamentally altered. Unless that happens, we must accept that being choice-effecting beings living together in groups has certain implications for us: our sociality is a fact of human existence that affects our existence as human beings. It creates a need for governance.
Yet, we still are separate, independent beings. Living together in groups does not alter that fact of human existence.
The most fundamental problem of our human existence is to reconcile those two facts of our being. Reconciling them in a way that is not arbitrary, i.e., does not involve any people imposing any solution to that problem on any others that those others can validly reject, can be said to be what justice is.
First, though, it must be acknowledged that the validity of justice does not depend in its being inviolable. All human beings have the capacity to act in this world in a way that violates any rule governing conduct. The goal is to arrive at the ethic of justice. While any ethic — any rule to govern the conduct of human beings in their actions (including ‘speech acts’) involving other human beings — can be violated, the point of the ethic of justice is that it is a universal rule, i.e., a rule to govern the conduct of all human beings in all of their actions that involve all other humans, the applicability of which to all human beings — including oneself — cannot be denied by any human being without violating knowledge of human existence that is universally verified, universally known to be true. Can any person deny that to be a live, conscious, awake human being is to be effecting choices?
Heretofore, anyone could validly deny the applicability of any idea of justice to oneself — or any other person — by simply denying the validity of its premise. Winfield analyzed those premises as being privileged givens or determiners. Since anyone could validly deny the validity of any of those premises, to this point every proposed idea of justice has in the end been arbitrary. Where any particular idea of justice has prevailed, it has been a case of some imposing their version of what justice is on others.
I have explained already why effecting choices can be the starting point for an ethic that is not arbitrary. All that is left is to derive the ethic that follows from that point.
Integral to effecting choices is choosing. That makes choosing integral to being human. Therefore, the prime consideration in our relations with one another is the capacity every human being has to choose for oneself.
It is also the case that we cannot affect other people unless we are effecting a choice. We might or might not intend to affect this or that other person in this or that way, but to affect another person requires effecting a choice; to affect another person is to raise the issue of justice/its absence.
Justice is present when people are respecting one another’s capacity to choose. To ignore the capacity of any other person to choose for themselves whenever we are effecting any choice is to diminish, denigrate, demean, even dehumanize that other person. It is to fail, intentionally or not, to recognize that person in full as a fellow human being, to assert some inherent status regarding oneself and the other person that cannot be materially verified, and is therefore arbitrary.
That generates an onus on all people to respect the capacity of all others to choose for themselves — beginning with choosing whether/how/to what extent to be involved in any way whenever any choice is being effected. So mutual respect for one another’s capacity to choose in effecting all choices is what justice is.
Beyond even that, ‘real justice’, as I have come to call this account of justice, does not even presuppose something called ‘justice’ that is itself a privileged concept. Rather, it simply is an understanding of the rule of conduct that our material existence as human beings — to include our living together in groups — thrusts upon us. Any other rule to govern conduct in that context — to include, say, ‘no fixed rules‘ (for that itself is a rule) — is an arbitrarily privileged ethic.
Finally, the validity of real justice does not depend on its being ‘objective’. While, again, I am no postmodernist, I do accept the point, made especially by Jacques Derrida, that it is impossible for any human being to achieve a state of mind in which no extraneous subjective influences are having an effect on a person’s reasoning.
Real justice does not even privilege knowledge that is derived from material existence over knowledge that ‘comes from within’, is derived subjectively, such as beliefs, intuitions, feelings, etc. Such knowledge is absolutely valid for the person who initially comprehends it and any people who, becoming aware of it, accept its validity. Unlike the observation that human beings have no choice but to effect choices, however, such knowledge is limited to those who accept its validity; it lacks the commonality of the observation from which real justice follows. That is the heart of the matter, the source of the arbitrariness in Winfield’s privileged givens and determiners.
Applying the ethic of real justice to life is a big, detailed task. I have been laboring for years to work out the implications of real justice for human being. The goal of this article has been to borrow from Winfield to show how other attempts at understanding justice have come up short and how real justice overcomes the problem of arbitrariness in determining what justice must be.
For more on the implications of real justice for governance: “Beyond Liberalism” (here in Medium, but not behind the paywall).