Cecile Fabreinterviewed by Richard Marshall.
Cecile Fabre is a funky philosopher who has brooded on Justice In A Changing World, asked Whose Body Is It Anyway? Justice and the Integrity of the Person, and thought about Social Rights Under the Constitution – Government and the Decent Life. She ducks no controversies when discussing dark things like mandatory rescue killings, mercenaries, just wars, organ farming, buying people for sex and buying children to stock up your family. Anyone who ever thought good answers to hard questions were going to be comfortable is going to be skewered by this coolest of philosophical minds.
3:AM:When did you decide you were going to be a philosopher? Was it always part of your way to think philosophical thoughts or were events crucial in your philosophical formation?
Cecile Fabre:I can’t really pinpoint a moment when I decided to become a philosopher: it wasn’t really a ‘on the road to Damascus’ epiphany; rather, it became clearer and clearer to me, over time, that although my first academic love was history, I was more engaged with normative questions. If I had to write a historical commentary of, for example, a speech by Lenin, as part of my history module on the Russian Revolution, I would analyse the fundamental moral and political principles at play in that speech, rather than worry about what might have lead Lenin to say what he said when he said it. By the end of my Bachelor’s degree in history, which I took at La Sorbonne, I knew that I wanted to become a philosopher.
That said, the first absolutely crucial moment, in that process, happened in my last year of high school: in France, philosophy is compulsory in the Baccalauréat and I was fortunate enough to have an absolutely outstanding teacher, Barbara de Negroni– in fact, one of the best teachers I have ever had – who first planted the seeds. She herself is particularly interested in moral and political philosophy, and it is under her guidance that I took my very first steps in those fields. The timing was particularly good: it was in 1989, the bicentenary year of the French Revolution, and I was living in Versailles, of all places.
The second, foundational moment, happened in 1992: I had just started a Masters in political philosophy degree at the University of York, under the tutelage of Peter Nicholson, Susan Mendusand John Horton: this was an eye opener. I discovered the analytical tradition, which is so different from the continental way of doing philosophy; more importantly still, I discovered a different academic culture here – one in which students are very strongly encouraged to challenge their teachers’ views and to try and articulate their own. Within six weeks of starting the course, I decided to stay in the UK to do a doctorate.
I ended up in Oxford – the third major step – and had the spectacular good fortune to be supervised and mentored by some of the very best political philosophers this side of WWII – in particular the late Jerry Cohen. He more than anyone taught me how to ‘do’ political philosophy’; more importantly, he taught me how to follow an argument to its conclusion, however unpalatable the latter; he also showed me, and countless others, how important it is to being able to say, in public, ‘you are right, and I am wrong.’ It might not seem much – yet that lesson has been invaluable.
3:AM:Your doctoral thesis became the book, Social Rights Under The Constitution. It’s a subject that maybe has eluded some of us: whereas civil and political rights are protected under most constitutions in the world, social rights aren’t. So welfare state provision is not part of constitutional protection. Can you first say more about this situation and how it came about?
CF:As it happens, social rights are protected under the French constitution – or constitutions in the plural I should say, for we have had quite a few. Then again, there is a much stronger, or at least, a more explicitly endorsed, statist tradition in France than in the English speaking world, which in part explains why we do have those constitutional rights, and the Anglo-Saxon legal and political tradition resists them. By the same token, in so far as civil and political rights respectively seek to keep the state at bay (eg: don’t infringe on freedom of speech) or to control it (citizens get to decide who is in power), you can see why that tradition – at least in the US - has been more hospitable to constitutionalising them.
3:AM:You think that this is a bad situation. You want social rights to be constitutional. I think the reasons you give are framed by what you call the ‘two major issues of contemporary political philosophy: the issue of democracy and the issue of distributive justice.’ Can you say something about this and how your argument develops from this context?
CF:I am not sure that I would still call democracy and distributive justice thetwo major issues of contemporary political philosophy: toleration, the problem of political obligation, and war come to mind as well. That said, the reason I started on this question – constitutionalising social rights – lies in a puzzle: the more elaborate and demanding your conception of distributive justice (that is, of how, to whom, and when, material resources such as money ought to be distributed in our society), the less space there is for democracy to function. Suppose you say ‘justice requires that all individuals have the same amount of resources’. Any decision made by the democratic majority which fails to distribute resources in that way counts as unjust. It would seem, then, that we cannot be both committed democrats and committed proponents of justice – at least, of demanding justice. Something ‘has got to give’, to put it in a very non-philosophical way, and the question is what, precisely, must give: justice, or democracy? The book in effect argues that democracy must give in to social rights.
3:AM:You claimed in the book that your argument was pretty much the first, along with a thin version from David Miller. Thomas Nagelhad said constitutional social rights were a good idea but gave no defence. John Rawlstoo had stated that the social minimum should be entrenched but then had fallen silent. Ronald Dworkinwas just silent. Joseph Razhad discussed civil and political rights but had avoided social rights. Why was it such a muted philosophical subject and have things changed since you published your book?
CF:The main reason, I think, why Anglo-American legal and political philosophers have either avoided the issue, not fully defended constitutional social rights, or have argued against them, is the deeply entrenched conviction that judicial review as carried out by, eg, the US Supreme Court, is not an appropriate or effective instrument to protect those rights. I don’t think that things have changed that much in that part of the world; gratifyingly, however, the collapse of communism in Europe and other forms of dictatorial regimes in other parts of the world, notably Latin America or indeed South Africa, has led constitutional scholars there to think afresh. I must confess that I have not kept up to date with this particular literature in the last ten years, but I do know that there has been renewed interest there in constitutional social rights. Whether courts are indeed the best forum I which to bring about social justice is something which we might be able to ascertain in a couple of decades, when the judicial and constitutional dust has settled.
3:AM:Rights, autonomy and a minimally decent life are the three core components of your argument defending constitutional rights. What do opponents argue against your views and which argument do you find the most dangerous to your position?
CF:Some critics dispute the very idea of rights; others endorse rights, but reject constitutionalrights: my colleague at Oxford, Jeremy Waldro, is the foremost and most sophisticated proponent of the view that equal respect for persons entails a strong commitment to democracy - which commitment is incompatible, he claims, with constitutional rights. In so far as I share the view that we all owe one another equal respect, his argument, if he is right, is devastating for my conclusion. Fortunately (for me at least!) I don’t think he is right, but still…Others, finally, reject the view that justice only requires that individuals have prospects for a minimally flourishing life. They claim that a just society is one in which people have as much as one another, or that priority should always be given to those who are worst off. These views are much more demanding on agents than my own; and if they are right, then it seems to me that we might have to give up on constitutionalising justice, out of deference to democracy.
3:AM:I guess one of the issues coming out of cognitive science and philosophy of mind rather than political philosophy has been the question of freewill and agency. Naturalist philosophers like Alex Rosenbergand X-phi-ers have presented evidence to show that autonomous agency is an illusion but that this supports distributive justice. How do you meet this kind of objection? And suppose that somehow the evidence supporting this position was overwhelming, would you change your views about the desirability of social rights?
CF:This is a powerful challenge to my autonomy-based argumentfor constitutional social rights, but I still would endorse the latter. For even if we are not in fact autonomous, whether or not our life goes well – whether we are happy, in pain, whether we do indeed have the material wherewithal to implement the conception of the good life which we are predetermined to want remains important: not all roads to justice start from autonomy. That said, I do think that theorists of distributive justice could do much worse than to study the free will problem assiduously – especially those theorists known as luck-egalitarians, who believe that people are not owed help, as a matter of justice, if they are not responsible for their predicament. If there is no such thing as free will, then everyone is owed help. I used to think quite strongly that responsibility did have an important role to play in determining who does and who lacks a claim at the bar of justice: now, I am not so sure.
3:AM:Your third book was Justice In A Changing Worldwhich is an extended meditation on Rawls' Theory of Justiceand the various debates that it has generated since being published. Can you say first of all why Rawls is so important? It links to your earlier thoughts about the welfare state doesn’t it?
CF:Rawls' Theory of Justiceis one of the three most important works in political philosophy in the Western canon (the other two being Plato’s Republic– which of course is about much more than political philosophy – and Hobbes' Leviathan.) Thanks to Rawls, it became possible once more to think about those crucial issues (resource distribution, freedom, fairness) both in normative terms and with a high level of analytical clarity. Whilst his works are not as directly discussed as they used to be, all of us in our field one way or another position ourselves vis-à-visRawls, even if we do so often unconsciously. This book of mine, Justice in a Changing World, was written as a textbook for advanced undergraduate and graduate students: it couldn’t notaddress Rawls. And in an event, as you say, I have a strong, abiding interest in distributive justice and the ethics of the welfare state - if only for this reason, engaging with Rawls has always been necessary.
3:AM:In your book you discuss how the scope of justice has to be extended from Rawls’ original position to encompass justice between generations, justice between cultural groups, national self determination, territorial justice, justice between foreigners, immigration and reparations for past injustices. In your view are all these equally significant or is there a hierarchy of justices?
CF:A lot depends on what you mean by ‘hierarchy’. If you mean ‘which issue is the most pressing as a matter of public policy’, then I would say that justice between foreigners and immigration are the most important: a world in which millionsof people avoidably die every year is unconscionably unjust. But if you mean ‘is it morally more important to argue in favour of justice across borders, or in favour of justice between generations, or in favour of national self-determination’, then I don’t think that there is such hierarchy.
I don’t think that there is a hierarchy of justices, as it were, within distributive justice. As to whether or not the demands of distributive justice are more compelling than the demands of restitutive justice – perhaps. At the very least, whether one gives priority to helping someone in need whom one has not harmed, and giving back what we owe to someone one has harmed – partly depends on the extent of the need, the magnitude of the loss, etc.
3:AM:Rawls is what you call an egalitarian liberal. You contrast the position with two main rivals: communitarianism and libertarians. What are the main contrasts as you see them between these three positions and what makes egalitarian liberalism more just than the other two positions?
CF:Egalitarian liberals believe not only that individuals have fundamental rights to important freedoms such as freedom of speech, freedom of movement, and so on, but also that they are owed material assistance, as a matter of justice – on the basis of need, or on the basis of being worse off than others. In other words, they believe that the welfare state, which is funded through coercive taxation, is just.
For libertarians, by contrast, justice requires that individuals’ rights over their body and person (rights of self-ownership) be respected; this includes full, exclusive rights over the product of their labor. For libertarians, in other words, coercive taxation for distributive purposes is tantamount to an act of theft. The difference, or differences in the plural, between egalitarian liberals and communitarians are somewhat harder to draw, if only because there are many different strands within communitarianism with which to contrast different strands of liberalism.
However, it is fair to say that egalitarian liberals believe that individuals are the primary locus of concern and respect, that they have the capacity to challenge the prevailing social and cultural ethos of their community and moreover that they shouldexercise that capacity; communitarians, on the other hand, conceive of individuals as mostly and deeply embedded in a network of social and cultural values and relationships from which they cannot, and ought not to strive to, escape.
As an egalitarian liberal, I reject both communitarians’ emphasis on the value of a communal ethos qua communal ethos, and libertarians’ rejection of the welfare state. Pace communitarians, it isgood that we should be able and willing critically to reflect on communal values (which does not mean, necessarily, rejecting them, but rather, and at the very least, question them); pace libertarians, if individuals are the fundamental locus of concern and respect, then they are owed assistance – they are owed, for example, not to be left to starve to death (at the very least).
3:AM:How do you see recent protests such as the Occupy movements? Are the complaints against plutocracies and the perceived unfairness of a tiny minority having so much power and wealth compared to vast majorities being so poor and weak symptoms of the lack of the kind of egalitarian liberalism you are discussing? Are you hopeful that politics is moving in the right direction?
CF:Those complaints are definitely, and absolutely, symptomatic of our collective moral failure to implement egalitarian liberalism widely understood. But I am not hopeful at all that politics is moving in the right direction: viz.the latest budget in the UK, to give but one example.
3:AM:In your book, Whose Body Is It Anyway? Justice and Integrity of the Person, you take the idea of distributive justice and subject it to intense scrutiny. Were you surprised by where your arguments took you in this or were you already holding pretty controversial views on certain areas of this subject before refining the arguments laid out in the book?
CF:I was surprised by some of the turns which my arguments took – though not all. For example, for as long as I have thought about this, I have held the view that we simply do not have the right to hold on to our organs after we are dead, as well as the view that prostitutes are not doing anything wrong. But I was not prepared for having to endorse the view that, in some cases at least, the coercive taking of live body parts is permissible, indeed required at the bar of justice; or the view that organ sales are not, per se, morally wrong. In writing that book, I had to confront some of the most uncomfortable intuitions I have ever had – which was very tough at times, both intellectually and emotionally. But this is also what I love about philosophy – that it is wholly existential.
3:AM:So in this book you ask what we should be allowed to do and what we shouldn’t be allowed to do with our bodies, and also what society should be allowed to do with them too. Again you begin your argument from a rights based sense of justice so the argument connects with your previous thinking. But it is unusual to find such an argument being directed at the body. As you write at the start: ‘In the prevailing liberal ethos, if there is one thing that is beyond the reach of others, it is our body in particular, and our person in particular.’ Your book challenges this, doesn’t it? Can you say what you are arguing?
CF:In a nutshell, my claim is this. Many people live a less than minimally decent life, die even, because we do not give them the money or material goods which they need. Likewise, many people live a less than minimally decent life, die even, because we do not use our body, and person, in the required way: we do not rescue them from drowning, we do not provide them with medical services, we do not give them the organs they need. Now, most people claim that the first is an unjust state of affairs (so we should set up a welfare state out of coercive taxation), whereas the second is not unjust (so we are morally permitted not to provide the relevant services and organs.)
In his seminal Anarchy, State, Utopia, Nozick, who is a libertarian, claims that this is an incoherent position: the coercive distribution of money and the coercive distribution of personal services/body parts stand or fall together. Of course, Nozick thought that liberal egalitarianism was misguided precisely becauseit had to endorse the latter. My aim was to show, first, that Nozick’s ‘stand or fall together thesis’ is sound, and, second, that on an independently plausible (and relatively modest) account of liberal egalitarianism, one could endorse the coercive taking of services and body parts (under certain conditions) without thereby treating agents as objects, slaves, etc.
3:AM:There are obvious controversies in what you are arguing. So, for example, can you say what your argument commits us to in terms of organ transplants and farming? You don’t believe they should be illegal do you?
CF:I certainly do not think that organ transplants should be illegal; nor do I think that organ farming should be – in fact, it might well serve to remedy chronic shortages.
3:AM:I guess what might strike many as really surprising is that you think that prostitution should not be illegal but that it should be protected as a right. Many feminists will join forces with libertarians and say this can’t be justified. But you think it can. So what is the argument for defending prostitution in terms of justice and the integrity of the person and human flourishing?
CF:You are right that many feminists would vehemently oppose my views; but some would not, on the contrary – and those in fact would align themselves with libertarians (since for libertarians we have the right to dispose of our body as we wish.) The justice based argument for defending prostitution goes something like this: in so far as prostituting oneself does not harm others, and in so far as a a just society is one which respects agents’ autonomy (the latter being constitutive of human flourishing), it is also one in which prostitutes ought to be left free to decide what to do with their body (in matters of sex.)
I should say, though, that the case of pimps and clients is more complex: to the extent that clients and pimps objectify the prostitute, then they act wrongly – indeed unjustly. But (and this is crucial) it does not follow that the state may coercively prevent them from buying and procuring sex: there are many unjust practices and conducts which, for various reasons, the state ought not to criminalise (eg, when parents give unequal amount of pocket money to their sons and daughters, just on the basis of gender) and I believe that this is one such case.
3:AM:What do you say to those who argue that prostitution is constitutionally harmful to flourishing and personal integrity, that it is unavoidably so? I presume then you would argue that the right to prostitute yourself be withdrawn but only in those instances where it could be shown to be intrinsically harmful. Wouldn’t any pimp worth their salt just deny the intrinsic harm and the onus would then be to prove he was wrong, which wouldn’t be good would it?
CF:Even if prostituting oneself is intrinsically harmful to one’s flourishing and personal integrity, that fact alone does not entail that there is no such thing as a right to prostitute oneself. For a start, it is helpful to scrutinise a bit more closely what we mean by ‘not having a right to prostitute oneself, or to visit prostitutes, or to procure prostitutes.’ We might mean ‘doing something which is morally wrong’. In this case, we would need to distinguish the claim that prostitutes act wrongly by undermining their own integrity, from the claim that their clients and/or pimps act wrongly by contributing to this state of affairs. I do think that the latter claim is true in most cases, but I am not persuaded at all that undermining one’s personal integrity is morally wrong, particularly when one does not harm others in so acting and when one has very good, compelling reasons (for example, economic necessity) to do it. Alternatively, by ‘not having the right’ we might mean that prostitutes, their clients, and pimps, ought to be interfered with and punished for engaging in prostitutional relationships. To make that claim of pimps, and perhaps even clients, is one thing; to make it of prostitutes, who again more often than not are driven, not to say coerced, into prostitution, is another thing altogether.
Notice that, in my response, I accept the objection’s premise – that prostitution is intrinsically harmful. I am not persuaded that it is (though prostitution as it typically occurs, under duress, for example, is). I am not persuaded, in other words, that the act itself of selling or buying sexual services is necessarily vitiative of one’s flourishing and integrity. My response to the pimp would be this, however: even ifprostitutional sex does not undermine flourishing and integrity, nothingcan justify the treatment which pimps standardly mete out against prostitutes.
To finish on this point – here is a thought which I have always found interesting. If the wrongness of pimping consists, at least in part, in procuring a service without taking part in its production, and profiteering from it, then the same goes for a great many economic relationships in capitalism.
3:AM:You also think surrogacy should be a right too. The way this works sometimes at the moment is that rich people buy the children of poor people. It’s hard to see how a right of parenthood could be treating a child as a unit in a financial transaction, so how do you defend this?
CF:This is a difficult question. Let me start with the really tough concession which, in my view, any defender of surrogacy must make – namely that there is a sense in which surrogacy does consist in buying and selling a child: in the book, I try and show that arguments to the contrary fail.
The question, then, is what follows from that concession. Ifbuying x entails that one may treat x as a commodity (as something which we can in turn sell at will, destroy, abuse, neglect) then surrogacy would be grievously wrong. However, when we buy or sell stuff, we only buy and sell the independently defended rights which it is possible to have over it. To make this less abstract: though I bought my house from another person, I did not buy from him the right to burn that house to the grounds at will, since he did not have that right himself in the first instance. Likewise, when we buy a fish, or a cat, or a horse, we do not thereby acquire the right to treat them as commodities. The same goes with children born from commercial surrogacy agreements.
3:AM:I think anyone reading your work can see that you are confronting some of the toughest questions facing humanity with compassion but without sentimentality. You don’t duck implications of ideas of human rights, of extending the scope to ensure greater egalitarianism and justice. But as you look at the world at the moment, are you hopeful that humanity has the capacity to respond to your arguments? Rawls is sometimes read in terms of neo-Marxism. Do you find any left-field alternatives to your own vision of egalitarian liberalism, such as Zizek’s Stalinism or Simon Critchley’s anarchism, at all interesting?
CF:I am not that hopeful about the future, to be honest. At the same time as progress has been made regarding, eg., the rights of women, minorities, indeed children, we have endowed ourselves with unprecedented capacities for collective self-destruction. In so far as neither Stalinism nor anarchism strikes me as morally viable alternatives to some form of liberalism, all that we can hope for is muddle through with the latter as an imperfect guidance to conduct ourselves, both as citizens and in a private capacity.
3:AM:You are not optimistic about the future then?
CF:No, not really, for the reasons I have given above….
3:AM:Finally, for the politically literate readers here at 3:AM, are there five books you could recommend that we’d find enlightening?
CF:Assuming that your readers would have read Plato’s Republic, Hobbes’ Leviathan, and Rawls’ Theory of Justice, I would list the following, in no particular order: the first volumeof Churchill’s history of the Second World War (admirably written, and an inspiring display of will power and cunning in the face of adversity); Michael Walzer’s Just and Unjust Wars(I am currently working on the ethics of war, but even for the non specialists, this is one of the best philosophical books of the 20th century); Tolstoy’s War and Peace(it’s got everything: war, love, private and collective grief, and a deep, deep love of humanity); Elliot’s Middlemarch(for she shows us that in the end, what really matters is the ordinariness of our daily moral life); Kant’s Groundwork.
I mention the latter because it is both one of the most important books in moral philosophy – if not the most important – but also because, or mainly, Kant’s abiding commitment to the fundamental equality of all human beings resonates through every single one of its pages. It is full of mistakes of course; in particular, its egalitarian commitment is somewhat vitiated by Kant’s attitudes to women. This last point notwithstanding, I find that book extraordinarily moving – the philosophical equivalent (to my mind) of J. S. Bach’s music. In the same way as Bach’s rigorous, almost mathematical phrasing at its best reaches sublime spiritual heights, Kant’s rigorous, demanding philosophy at its best reaches to the deepest, in fact spiritual, commitment to the intrinsic value of each and every one of us, irrespective of race, gender, social class, and community membership. I can think of no greater ideal to aspire to.
ABOUT THE INTERVIEWER
Richard Marshallis still biding his time.