A Socially Constructive Social Contract: the Need for Coalitions in Corrective Justice by Nina Sophia Windgaetter

A Socially Constructive Social Contract: The Need for Coalitions in Corrective Justice by Nina Sophia Windgaetter A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Philosophy) in the University of Michigan 2017 Doctoral Committee: Professor Elizabeth S. Anderson, Chair Professor Derrick L. Darby Professor Scott A. Hershovitz Professor Ishani Maitra i Nina Sophia Windgaetter [email protected] ORCID iD: 0000-0003-0785-9726 © Nina S. Windgaetter 2017 i ACKNOWLEDGEMENTS I would like to begin by thanking my committee members for all their help with the inspiration for, writing of, and encouragement to finish this dissertation. There is a trope of graduate students having to hunt down committee members for feedback, but it did not ring true for me with my committee. I would like to thank them for actively soliciting writing from me and providing prompt feedback. This is especially the case for my Chair, Prof. Anderson, who at one point forced me to submit writing every week and generally returned it with comments the next day. I have returned to this writing, and the sketches of others’ views that I did in order to turn in something, throughout writing this dissertation. I took seminars and courses with three committee members that really set the stage for many of the concerns that my dissertation attempts to address. Throughout this dissertation, I no doubt make arguments which I was first exposed to in these classes, and which are now so familiar to me that I don’t remember who first showed them to me. My first year, I took a seminar with Prof. Anderson that really pushed me to think about status inequality. My second year, I took a class with Prof. Maitra on feminist epistemology which sparked my interest in situated knowers, and a class on health justice with Prof. Darby which made me think deeply about nonideal theory for the first time in my academic career. My fourth year, I took a seminar with Prof. Maitra on feminist philosophy which set the stage for my understanding of how social structures shape our social cognition and got me to look at the work of Ann E. Cudd on oppression, whose concepts form the background for how I think about social structures. I also took a seminar that year with Prof. Darby on ideal and nonideal theory which complimented my research into nonideal theory, but especially Charles W. Mills, who I was forced to defend, given that the other people in the course weren’t giving him his fair shake. Having to articulate a defense of Mills’s positions made me realize the affinity that we shared in our commitments to the domination contract’s theoretical utility. In my fifth year, I took a seminar with Prof. Anderson on Dewey’s pragmatism that really brought together many of the disparate considerations that I had, and convinced me that I have many pragmatist leanings. I would also like to thank all of the professors and students I have taken courses with over the years who have contributed to my philosophy education. Of particular ii significance to me are Hans Oberdiek of Swarthmore, who showed me how much fun philosophy could be, and convinced me that people like me did philosophy, and Samuel Freeman who taught me Rawls at the University of Pennsylvania. I would also like to acknowledge all of the people who have supported me in this endeavor. I would especially like to thank my husband, Oliver, who made sure I ate well, and whose tireless faith in the importance of my research project helped my get through the more difficult moments of graduate school. I’d also like to thank all of the wonderful Michigan graduate students, staff, and faculty who have been wonderful to me, challenged me, and made me laugh while I was here, as well as my family who have supported me, even as my speech patterns have become more and more academic. iii TABLE OF CONTENTS Acknowledgements ii Abstract vi Chapter 1: Social Contract Theory and Corrective Justice I. Introduction: Towards a Socially Constructive Theory of Corrective Justice 1 II. The Need for Nonideal Theory in Corrective Justice 4 1.2.1 To Answer Nonideal Questions we Need Empirical Models of Injustice 6 1.2.2 Using Ideal Theory for Corrective Justice Would Require a Conversion Schema 11 III. Four Virtues of Social Contract Theory for Corrective Justice 14 1.3.1 Institutions as Social Processes over which we have Collective Control 15 1.3.2 Justification is owed to Each Member of a Cooperative Scheme 19 1.3.3 Aspiration for Prescriptions Free from Bias: An Archimedean Point 25 1.3.4 Aspiration for Collective Agreement and Action 30 IV. The Structure of my Argument in this Dissertation 35 Chapter 2: The General and Specific Domination Contracts I. Introduction 40 II. The General Domination Contract 42 2.2.1 The General Domination Contract as Stratification through Social Constraints 43 2.2.2 A Model of How Stratification Works through Social Constraints 45 III. A Specific Domination Contract: The Chicago Police Department 63 2.3.1 Background on the Chicago Police Department & this Report’s Findings 64 2.3.2 Some Particularly Problematic CPD Policies and Practices & the Use of Force 66 IV. The Difference between Ideally- and Nonideally-Situated Agents 75 2.4.1 The Differences between Ideal Agents and CPD Officers 75 2.4.2 The Importance of Discretion in Nonideal Cases: Beyond the Basic Structure 79 Chapter 3: The Cooperative Position I. Introduction 82 II. Normative Standards, Agreement, and Corrective Justice 85 3.2.1 The Circumstances of Cooperation 87 iv 3.2.2 Persistent Disagreement & the Advantages of Ideals over Principles 96 3.2.3 An Argument for Two Tiers 102 III. The Setup of the Cooperative Position as Embodying the Ideal of Social Cooperation 103 3.3.1 The Ideal of Social Cooperation as an Organizing Conception 104 3.3.2 The Setup of the Cooperative Position 107 IV. The Cooperative Ideals 108 3.4.1 The Interests of People Engaged in Social Cooperation 109 3.4.2 An Argument for my Cooperative Ideals 114 Chapter 4: The Setup of the Corrective Position I. Introduction: The General Setup of the Corrective Position 123 II. An Argument for the Inclusion of the General Domination Contract 125 4.2.1 Why Background Conditions are Normatively Relevant to Corrective Justice 125 4.2.2 How the General Domination Contract helps us Live up to Social Contract Theory’s Promise 129 III. An Argument for the Inclusion of One Specific Domination Contract 136 4.3.1 An Argument for the Inclusion of a Specific Domination Contract 136 4.3.2 An Argument for the Inclusion of only One Specific Domination Contract 139 Chapter 5: The Need for Coalitions: A Principle of Corrective Justice I. Introduction 143 II. The Parties’ Concerns about the Chicago Police Department 145 5.2.1 Police and the Cooperative Ideals 146 5.2.2 How Stratification Works through the Chicago Police Department 149 5.2.3 The Ideal of Community Policing Revisited 169 III. The Systematic Nature of the Injustices we Face Makes Coalitions Epistemically and Practically Necessary 170 5.3.1 The Systematic Nature of Injustice 171 5.3.2 The Epistemic Necessity of Coalitions for Corrective Justice 176 5.3.3 The Practical Necessity of Coalitions 183 IV. An Argument for my Principle of Corrective Justice 187 Chapter 6: Five Desiderata for Applying the Principle of Corrective Justice—The Value of Specificity in a Theory of Corrective Justice I. Extending the Machinery of my Two-Tiered Social Contract 190 II. Desiderata for Applying the Principle of Corrective Justice 193 6.2.1 Desiderata for Setting Corrective Goals 194 6.2.2 Desiderata for Pursuing Corrective Goals 198 III. The Advantages of my Approach: Framing Disagreement 202 Bibliography 206 v ABSTRACT In my dissertation, I argue that the enterprise of corrective justice requires answering questions about what is unjust and how we ought to set and pursue corrective justice goals. To answer these questions in a way that will allow us to correct for the persistent and entrenched injustices which result from processes of stratification in our society, I’ll put forward a two-tiered social contract theory, which will allow us to approach these questions in a way that will capture the agreement we can have and allow us to structure the persistent disagreement that we cannot and ought not avoid. In the first tier—the cooperative position—the parties know only that they’re in what I’m calling the ten circumstances of cooperation—the circumstances in which modern cooperation takes place. These circumstances includes the social complexity and opacity inherent in complex cooperative arrangements which have epistemic effects on our social cognition in ways that make our view of our social arrangements at best partial, and work to obscure important features of our social reality, especially those affecting those at the bottom of our stratified social relations. This tier generates four cooperative ideals—proficient rationality, democratic equality, social understanding, and dignity—that function as a theory of justice which can gain an overlapping consensus in society but still allow for meaningful disagreement to take place. In the second tier—the corrective position—the parties have access to the circumstances of cooperation, four cooperative ideals, and a general and specific domination contract. These domination contracts model how stratified social relations operate to constrain people within social systems, including the ways that people think about those systems. I argue that the parties would affirm a principle of corrective justice as involving coalitions of differently-situated actors working together over time to dismantle unjust mechanisms, and five desiderata for applying that principle to circumstances as we confront them.

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