In Chronicle 248, I suggested that the newly begun “post-millennial” age requires a negotiational concept of justice to take the place of the redistributive concept that dominated the previous era. Where in the latter, the enforcer of justice subjects the present distribution of values to a “zero-based” evaluation, the former takes the given distribution as just until proven otherwise and seeks to negotiate grievances rather than enforce them.

In the context of American political philosophy, this opposition is reminiscent of the debate between liberalism, represented by John Rawls (A Theory of Justice, 1971) and libertarianism, championed by Robert Nozick (Anarchy, State, and Utopia, 1974). Very briefly, Rawls’ theory is based on the fiction of an original position in which we must approve the distribution of values within our society without knowing what place we would occupy in it. From this model, Rawls deduces that we should approve an unequal distribution only to the extent that it benefits the least fortunate members of society. Nozick’s work is an antithetical response to Rawls; his notion of the minimal state or “minarchy” allows coerced redistribution only to fund indispensable services, punish crimes, and rectify illegal usurpations. Thus Nozick argues against any governmental imposition of a “safety net,” which could be funded only by taking the property of those who would not require its benefits.

While similarities may be found between the concepts of justice in Rawls and Nozick and the two conceptions of justice to which I refer, the notion of justice itself plays a very different role in GA than in either of their systems. GA proposes no “theory of justice”; its concern is to understand how the dominant model at a given moment is derived from humanity’s originary constitution. Rather than articulating an ideal, it attempts to make explicit by means of this analysis the concept of justice that has actually been followed in the postmodern era. Similarly, in the post-millennial age, as defined by an emergent consensus of disillusionment with victimary thinking, GA’s task is not to propose our own desiderata but to anticipate the new model of justice that this disillusionment implies. Whereas Rawls’ theory strikes me as a fairly reasonable approximation to the victimary ethic of the postwar era–the “veil of ignorance” in the original position forces us to put ourselves in the place of the disfavored and consequently to reject any institutional discrimination based on ascriptive traits–Nozick’s libertarian ideal has limited relevance to the negotiational model of justice to be outlined here.

The models of justice to which I refer are only tangentially applicable to the internal politics of a liberal-democratic nation. The give and take between the economic and the political process in a country like the US produces outcomes that cannot be predicted in advance, although at some critical moments a new conception emerges with sufficient strength to dictate major political shifts; this was the case, for example, in the Civil Rights era. In the everyday context of national politics, “theories of justice” are essentially party ideologies: Rawls for Democrats, Nozick for (some) Republicans. Their tendentious nature makes them useful for defining policy positions, but a higher-level “meta-conception” is required to make sense of historical change.

Although even in the postwar era that saw the demise of the chief institutions that granted explicit privileges on the basis of skin color or ethnic origin, redistributive justice was more an ideal than a reality, it inspired such things as German reparations to Jews, increased welfare and unemployment benefits, Affirmative Action programs of all kinds, and, perhaps most important in this context, political rhetoric. Even if the “victims” did not always receive the requested compensation from their “persecutors”–as witness, for example, the apparently futile efforts of American Blacks to obtain reparations for the slavery of their great-grandparents–what is significant is that the argument is made at all. The victimary-redistributive notion of justice does not sweep all before it; yet it is responsible for the most significant changes in human interaction, both domestic and international, in the postwar era.

The Holocaust made the application of the victimary model to institutionalized inequality intuitively obvious, although it had not been so before WWII. In a brief space of time, we began to judge social institutions by the standard of the originary moral model of reciprocity, as exemplified by language. But the identification of inequality with victimization remains unproblematic only so long as the inequality can be attributed to the difference of persons before the law. The legacy of the postmodern era is (1) a democratic-liberal system for dealing with (a) essentially symmetrical relations, and (2) a victimary system for dealing with (b) essentially asymmetrical relations. The first and most critical problem of the new century is dealing with so-called asymmetrical conflicts between unequals that cannot unproblematically be assimilated to the victimary model. The dilemma of the post-millennial era is that (1) works well in its own domain, but cannot be applied directly to (b), yet (2) is no longer applicable either.

How then can conflicts be resolved between parties in an asymmetrical relation? In the sense that negotiated solutions can be found for difficulties in and between liberal-democratic societies, or even between societies lacking political freedoms that have become successful participants in the world market, the answer is that asymmetrical conflicts cannot be resolved. The Palestinian-Israeli situation exemplifies the difficulties faced by attempts to negotiate a solution to an asymmetrical conflict, not the least of which are the false hopes such attempts raise. The negotiational conception of justice is problematic in asymmetric situations because only one of the parties accepts the status quo as a point of departure for negotiation. If you feel victimized by me, whether overtly or simply by the very fact of my superior wealth or power, the idea of our negotiating as equals will strike you as farcical. But this cannot be our final word on the subject. The inapplicability to asymmetrical negotiation of the institutions that facilitate negotiation between coequal partners does not imply that no model is conceivable.

Within a democratic judicial system, the poor and the rich have equal standing, and the advantages of wealth may be outweighed by the fellow-feeling of the jury, or even of the judge. Consequently, such a conflict is not essentially asymmetrical. (That unfairly asymmetrical differences exist is a constant claim within democratic political systems, where these differences are judged and mitigated in a context of institutional symmetry, such as that of the representatives in a parliament.) How then are negotiations possible in the absence of any such overarching “symmetricalizing” institution?

The following model strikes me as plausible: The more favored party (A) listens to the claims of the less favored party (B), and attempts to reduce B’s resentment of the asymmetrical situation between them, but without accepting B’s demands at face value. Rather than compensating B for his inferior status, A’s task is to act so as to improve B’s hopes of narrowing and eventually eliminating the inferiority. This implies that A must accept the incomplete resolution of B’s resentment, and that B, despite this resentment, must be brought to accept the assistance of A. This model avoids imposing guilt on A by compensating B directly for his resentment, while offering incentives to both A and B to enter into conversation.

How could this model be implemented? There is by definition no body with power to impose it, for if such a body existed, the parties would be symmetrically situated in relation to it. An institution such as the United Nations can certainly exercise moral suasion, but ultimately it is the more favored party who must realize that human reciprocity is best served by initiating dialogue with the less favored one. This is not an abstract moral precept; the reciprocal interaction of language is in the first place a means of preserving peace so as to permit the pursuit of materially necessary economic activity, and these same reasons preside over the choice of the stronger to engage in “symmetricalizing” dialogue with the weaker.

Before WWII, despite the widespread existence of democratic political institutions, the dominant mode of conversation between the more and less privileged remained that of asymmetrical authority. In the manner of a Hegelian antithesis, the era that followed the war was dominated by the voices of the less privileged. The synthesis I am suggesting here begins with the two parties in their current asymmetric positions, understood not by the model of victimization but by that of negotiation as apprenticeship through dialogue. The interaction of the two parties is no longer conceived as a zero-sum game but as a productive one whose goal is the sharing by the weaker party of the privilege of the stronger.

We should not make light of the frustrations inherent in such a dialogue; it will not always be successful, perhaps will never be fully successful. Yet if, as seems obvious, we need to go beyond the model of persecutor and victim, negotiational justice as making-symmetrical through dialogue is the only obvious alternative.